Case Number: PSES258-17/18GP
Applicant: SADTU OBO MTSHOME
Respondent: 1st Respondent Department of Education Gauteng and 2nd Respondent Ms Mbonani
Issue: Unfair Labour Practice - Interpretation of collective agreements
Venue: Gauteng Department of Education’s offices’, 18 Essenhout Street, Dalpark, in Brakpan, Gauteng.
Award Date: 30 March 2018
Arbitrator: ARNE SJOLUND
Commissioner: ARNE SJOLUND
Case No: PSES258-17/18GP
Date of Award: 30 MARCH 2018
IN THE MATTER BETWEEN:
SADTU OBO MTSHOME APPLICANT
DEPARTMENT OF EDUCATION – GAUTENG
MS MBONANI 1st RESPONDENT 2nd RESPONDENT
12 Leslie Road
Telephone: 011 810-0905
Telefax: 011 810-0905
Respondent’s representative: Mr Nkosi
Telkom Office Towers
Telephone: 011 736-7887
Telefax: 011 736-0805
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration by the ELRC and was held on 14 March 2018 at the Gauteng Department of Education’s offices’, 18 Essenhout Street, Dalpark, in Brakpan, Gauteng.
2. Ms Mtshome (hereinafter referred to as “the applicant”) was represented by Mr Thai (“Thai”) from SADTU. The Department of Education – Gauteng (hereinafter referred to as “the respondent”) was represented by Mr Nkosi (“Nkosi”) an Employee Relations Manager in the employ of the respondent. Ms Mbonani (“Mbonani”) was joined in this matter by the ELRC and was represented by Mr Mokoena (“Mokoena”) from PEU.
3. Comprehensive bundles of documents were handed into evidence and utilized during the arbitration hearing marked “A”, “B” and “C”.
4. The parties, at the end of the arbitration hearing agreed that the matter could still be settled but, in the event, that the matter was not settled they would submit their closing arguments by 24 March 2018. The closing arguments from the respondent was well received and duly considered in my award. The applicant and the 2nd respondent failed to submit any closing arguments as agreed.
ISSUE TO BE DECIDED
5. This matter is brought in terms of section 24(2), [24(5)] of the Labour Relations Act 66 of 1995, as amended (LRA) and relates to the interpretation and application of a collective agreement. It is the applicant’s case that the respondent incorrectly interpreted and applied clause 4.2.2 of Collective Agreement 02 of 2005 (“the Agreement”).
6. I am tasked to interpret clause 4.2.2 of the Agreement, and should relief be required, to order the appropriate relief.
BACKGROUND TO THE ISSUE
7. The applicant is a post level one Educator as defined by the Employment of Educators Act 76 of 1998, (hereinafter referred to as “the Act”). She is employed at the eSibonelwesihle school (hereinafter referred to as “the school”) and receives a salary of R25 996-00 per month. The applicant applied and was shortlisted for the position of HOD Social Sciences post no-GE25CS1022B (“the position”). The parties agreed, and therefore it is common cause that the names of three candidates that applied for the position were submitted for consideration. Mr Pholosi (“Pholosi”) scored the best and was offered the position but he declined the offer. Mtshome scored higher than Mbonani but the respondent appointed Mbonani. It is also common cause that the panel “mixed up” the scores where they scored Mbonani 176 which was actually Mtshome’s scores. Mbonani’s actual score was 160. It is also admitted by the respondent that there were many discrepancies in the scores and the order of placement of the candidates by the independent panel. It is however the respondent’s submission that due to the mix up of the scores, the scores were not considered when the appointment was made.
SURVEY OF EVIDENCE AND ARGUMENT
8. It is not the purpose or the intention of this award to provide a detailed transcription of all the evidence that was placed before me even thought all evidence and arguments were considered. I have summarized the evidence that I found to be the most relevant to make a determination in this dispute.
Applicant’s Evidence and closing argument:
9. It is the applicant’s case that the applicant scored the second best and her name was submitted for appointment to the District Director with the other two names. When the best scoring candidate Pholosi declined the position the second-best scoring candidate (Mtshome) should have been appointed. Thai referred to the Agreement clause 4.2.2 and testified that the literal interpretation of this clause meant that the applicant should have been appointed. Clause 4.2.2 was read into the record and states that “the order of preference as recommended by the SGB must at least include 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”.
Respondent’s Evidence and closing argument:
10. Nkosi submitted that the respondent acted fairly and that it was within their rights to appoint whoever they believed was suitable for the position. It was further the case of the respondent’s that there were four managerial posts at the school during April 2015. Three HOD positions and one Deputy Principal position. Due to the number of grievances lodged after the completion of the processes, the recruitment of the position (the position in dispute) was given to and independent panel to manage, being Benoni District. Three candidates were recommended for the position, Pholosi, the applicant and the second respondent. Ms Pholosi declined the position and District Director then appointed Mbonani which led to a dispute being lodged by SADTU on behalf of the applicant. Nkosi submitted that the District Director when considering who to appoint was guided by Employment of Educators’ Act Section (EE A) clause 6 (3) (b) and Section 7 (2) read together with Employment Equity Act 55 of 1998 (EEA). Nkosi submitted that the that SGB can recommend any three candidates who they believe are appointable where after the District Director can appoint any one of the three candidates. Section 6 (3) (f) of the EE A states that “Despite the order of preference the HOD/Director can appoint any one of the three suitably recommended candidates” and it is therefore within the District Director’s prerogative to appoint any of the tree candidates. Nkosi submitted that he District Director considered that Mbonani was already acting in the position and it was in the best interest of the child to appoint Mbonani.
ANALYSIS OF EVIDENCE AND ARGUMENT
11. The applicant referred a dispute in terms of section 24 of the LRA. Section 24 of the LRA provides for arbitration of disputes about the “interpretation or application” of collective agreements. The interpretation of this section (section 24) provides for a dispute resolution device ancillary to collective bargaining, not to be used to remedy an unfair labour practice under pretext that a term of a collective agreement has been breached. The phrase “interpretation or application” is not to be read disjunctively, the enforcement of the terms of a collective agreement is a process which follows on a positive finding about application not a facet of application. A dispute about an employer’s failure to promote an employee is, properly characterized as an unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA. It is trite law that a Commissioner must characterize a dispute objectively, not slavishly defer to the parties’ subjective characterization, failure to do so is an irregularity and reviewable. As dealt with in paras (6) supra I am tasked to make an objective finding about what is the dispute to be determined. The Court in Wardlaw v Supreme Moulding (Pty) Limited (JA31/04)  ZALAC 2;  6 BLLR 487 (LAC) (10 January 2007) dealt with the question of whether the employees characterization of a dispute should enjoy deference and rejected that approach. As a result, in Wardlaw, the Commissioner was held to have incorrectly assumed jurisdiction over a dispute that should have been dealt with by the Labour Court. The Constitutional Court disposed of this issue in CUSA v Tao Ying Metal Industries and Others (CCT 40/07)  ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC);  1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC) (18 September 2008), stating that:
“A commissioner must, as the LRA requires, ‘deal with the substantial merits of the dispute’. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in”.
12. This approach was reaffirmed in the matter of NUMSA (Sinuko) v Powertech Transformers (DPM) and Others (2014) 35 ILJ 954 (LAC) where Coppin JA and had the following to say:
“What is a “dispute” per se, and how one is to recognize it, demands scrutiny. Logically, a dispute requires, at minimum, a difference of opinion about a question. A dispute about the interpretation of a collective agreement requires, at minimum, a difference of opinion about what a provision of the agreement means. A dispute about the application of a collective agreement requires, at minimum, a difference of opinion about whether it can be invoked. What is signally absent from the record is any clue that the respondent disputes that the collective agreement provides that an employee on suspension is entitled to full pay. Indeed, on the basis of the allusions in the ruling, that fact seems to be common cause. Similarly, there is no clue that the respondent disputes that the collective agreement binds itself and the appellant. What then, can possibly be the dispute about the application of the collective agreement? The critical facts put before the arbitrator were that an employee was suspended without pay. Prima facie, that is unfair. (see: Harley v Bacarac Trading 39 (Pty) Ltd (2009) 30 ILJ 2085 (LC) esp at ) The characterization of such a dispute is manifestly an unfair suspension dispute within the purview of section 186(2)(b) of the LRA. The mere fact that an express right to be paid during suspension can be derived from a statute or an individual contract or from a collective agreement is not a critical dimension of the dispute; rather it is simply evidence of the right. The idea that the breach of a right that derives from a collective agreement is automatically a dispute contemplated by section 24 is wrong. Section 23, which provides for the enforceability of collective agreements and section 24 need to be read together. Together they create the legal edifice for the legal effect of collective agreements and certain disputes which take place about them. Sections 23 and 24 are located in chapter III of the LRA. That chapter deals with collective bargaining. Part A of chapter III addresses organizational rights, and Part B addresses collective agreements. Section 23 and 24 are in part B. Parts C and D address bargaining councils. It is plain that section 24 is a procedure to oil the wheels of the collective bargaining process and an efficient resolution of disputes about collective agreements. The bald statement by Thompson and Benjamin that “application” includes enforcement is unmotivated and is, in my view, insupportable, if what is meant is that any breach of a collective agreement triggers a right to invoke the collective agreement as a cause of action to be adjudicated, pursuant to section 24. A better reading of Thompson and Benjamin is that it is implied that once “application” is proven, the referring party can procure more than just a declaratory order, and can obtain, pursuant to such finding, substantive relief. Martin Brassey, in Employment and Labour Law, Vol III, Commentary on the Labour Relations Act, A3-46, expresses the opinion that a general rule exists that section 24 “…is inapplicable to disputes for which remedial processes are especially created in the statute”. The proposition is based on the decision in G A Motor Winders (East Cape) CC and Another v Director, CCMA (2000) 21 ILJ 323 (LAC) in which, this Court dealt with an award purporting to have been made pursuant to section 24 enforcing the provisions of a collective agreement upon an employer who had claimed not to be bound. Upon a proper characterisation of the dispute, it was held that the controversy was a demarcation dispute and should have been dealt with in terms of section 62… Certain remarks of John Grogan, in his work, Collective Bargaining, (2007) Juta, Cape Town, p114, which were cited in HOSPERSA (Somers) v MEC for Health Kwazulu-Natal and Others [SAFLII] ZALCD/2014/41 at  were referred to in the argument by counsel for the appellant to supposedly support the argument that the appellant was correct to invoke section 24… In my view, what Grogan articulates in this passage is the suggestion that there might be two sets of circumstances contemplated under the rubric “application”. First, a difference of opinion whether the collective agreement is applicable at all; eg the relevant workers are not covered by its terms. Second, whether, eg, the activity which gives rise to controversy is covered by the collective agreement. It is not apparent that Grogan in this passage intended to address the question of whether “application” embraces “enforcement”, as Thompson and Benjamin casually assume. Moreover, a fair reading of Grogan’s statement cannot construe it as intended to be a comprehensive account of the permutations of possible meanings of section 24 because the burden of the text is plainly to distinguish the terms “interpretation” and “application” and to alert the reader to the potential for seamlessness between these notions in a real dispute, a sound reason why they ought not to be read disjunctively. There is accordingly no need nor any justification to understand section 24 in a sense so broad that any alleged breach of a term of a collective agreement means the dispute automatically falls within section 24. In the result, the arbitrator misdirected himself by not determining objectively the true dispute and had he done so he would have found that the true dispute was one contemplated by section 186(2)(b) of the LRA, and, in consequence, startlingly out of time, requiring an application for condonation”.
13. It is the applicant’s case that the respondent interpreted clause 4.2.2 of the Agreement incorrectly whereby the applicant was prejudiced and the 2nd respondent appointed. From the evidence placed before me it would appear that the true nature of this dispute is the non-appointment of the applicant and therefore an unfair labour practice dispute as defined by section 186(2)(a) of the LRA. I will however deal with the issue placed before me. The respondent disputed that they were bound by clause 4.2.2 of the Agreement and submitted that the respondent, or in this case the District Director has the prerogative to appoint who he or she deems fit in terms of the EE A. It is common cause that the scores were “mixed up” and the respondent submitted that the District Director did not consider the scores when making the appointment. What was considered was the fact that Mbonani was already acting in the position and it was in the best interest of the child to appoint Mbonani. There are three basic requirements for a fair appointment or promotion, the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable. The principles which determine promotion disputes are summarized by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion;
In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates;
The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA.
The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
14. In considering the interpretation of clause 4.2.2 I cannot be bound be the strict literal interpretation of what was placed before me and I have to consider other Act’s or Resolutions that deal with the appointment of Educators. A significant amendment was introduced in terms of the Education Laws Amendment Act No. 24 of 2005 that came into effect on the 26 January 2006. The position subsequent to the amendment is that the SGB makes its normal recommendation to the HOD, but the HOD is no longer bound to accept the SGB’s order of preference or the whole recommendation itself. The HOD may appoint any one of the recommended candidates irrespective of the order in which they were recommended by the SGB. The respondent submitted that the scores were not considered when making the appointment and that the fact that Mbonani was acting in the position was the considering factor. The Court held in the matter of Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA) the mere fact that an employee is already acting in a post, does not give him or her an automatic right to a promotion when the position becomes available. At best it gives such an employee the right to be heard when it becomes available. In the matters of Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02 / 15349,  JOL 17802 (W); Douglas Hoërskool & 'n ander v Premier, Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 1144I–1145I held that strict compliance with the guidelines for appointments provided for in PAM and ELRC Collective agreements is not necessary. Section 6 (3) (f) of the EE A also states that “Despite the order of preference the HOD can appoint any one of the three suitably recommended candidates”
15. In considering the totality of the evidence placed before me I find that literal interpretation of clause 4.2.2 of the Agreement is interpreted to mean that “if the top ranked candidate declines the post, the next candidate will be appointed from the list”. This must however be read together with all other Agreements and/or Act’s governing the appointment of Educators whilst considering all other relevant factors. In considering all other Agreement’s and Act’s read together with the Agreement I find that the Agreement cannot stand on its own and that the HOD, or in this case the District Director could appoint any of the three candidates. As dealt with in my award I cannot make a finding on the fairness of the appointment, or non-appointment of the applicant. This award however does not preclude the applicant from challenging an unfair labour practice dispute relating to promotion in terms of section 186(2)(a) of the LRA. Accordingly, I order as follow:
16. The respondent was not compelled to comply with the literal interpretation of clause 4.2.2 of the Agreement.
17. The matter brought under case number PSES258-17/18GP is dismissed.
18. No order as to cost is made.