PSES 122 -17/18WC
PSES 122 -17/18WC
Award Date:
3 May 2018
Case Number: PSES 122 -17/18WC
Province: Western Cape
Applicant: Naptosa obo Ramon Jayde Chetty
Respondent: 1st Respondent Depatment of Education Western Cape & 2nd Respondent T Mapua
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Leadership Institute offices in East London
Award Date: 3 May 2018
Arbitrator: Malusi Mbuli
Case Number: PSES607-17/18 EC
Panelists: Malusi Mbuli
Date of Award: 03-05-2018
In the ARBITRATION between
Education Leadership Institute offices in East Londonobo RAMON JAYDE CHETTY
(Applicant)
And
DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)
T. MAPUA
(2nd Respondent)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
The appointment of the 2nd respondent and the non – appointment of the applicant was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (a) of the LRA.
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Education Leadership Institute offices in East London on the 25th of April 2018 before Commissioner M. Mbuli.
2. The applicant Mr. R. Chetty attended the hearing and was represented by Mr. K. S. Dalasile an official of the applicant’s trade union NAPTOSA.
3. The respondent Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. W. Hena, an official of the respondent. The 2nd respondent Mr. T. Mapua also attended the hearing and was represented by Mrs. T. Peterson an official of the 2nd respondent’s trade union SADTU.
4. The matter was finalized on the same day the 25th of April 2018 and the parties agreed to file their closing arguments not later than the 03rd of May 2018.
ISSUE TO BE DECIDED
5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, a male person applied for a position of an HOD – FET – English grade 10 - 12 at Alphandale Senior Secondary School in the East London District of the respondent. The applicant was shortlisted, interviewed and initially recommended as no 1 for appointment to the said position but was not appointed to the position.
7. Four candidates were recommended in terms of section 6 of the Employment of Educators Act including the 2nd respondent and the 2nd respondent was first recommended as no 2 and later as no 1 to the Department of Education.
8. The Governing Body recommended the 2nd respondent for appointment to the said position after they had obtained an advice from the Department of Education – Eastern Cape when the respondent refused to appoint the applicant who was first recommended as no 1 candidate.
9. The 2nd respondent is now occupying the position and the applicant felt that the process that led to the appointment of the 2nd respondent and his non – appointment was unfair and constituted an unfair labour practice.
10. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether the respondent was justified or had valid reasons to reject the recommendation of the SGB and refer the matter back to the S.G.B for further recommendation.
11. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the SGB after the matter was referred to the SGB for further consideration. The parties agree that the decision or power to recommend a candidate to the department rests with the SGB and that the decision to appoint rests with the Department of Education - EC.
12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 25th of April 2018.
SURVEY OF EVIDENCE
13. Summary of the evidence led by the applicant.
The applicant applied for the position of an H.O.D – FET phase at Alphandale Senior Secondary School in the East London District of the respondent. He was an educator employed by the respondent having thought for 10 years before he applied for the said post, was shortlisted and interviewed for the said position of the H.O.D.
He testified that the requirements for the position in question were RQV 13 and 3 years experience and he has English 3 that qualifies him to teach English at the FET phase. He stated that he is studying towards a B. Ed degree and has received credits and credited to his NPDE qualification in recognition of prior learning.
He stated that he has an NPDE & ACE qualification in the Intermediate and Senior phase and does not have a qualification in the FET phase. He attended the interviews and did not register any objections.
The applicant concedes that both himself and the 2nd respondent met the minimum requirement of the H.O.D post and that they were therefore eligible for appointment to the said position. Applicant avers that before the position was filled he has been teaching in the FET phase and had been doing managerial duties for the school and the department. He confirmed that his teaching in the FET phase was an internal arrangement at the school.
He confirmed the process of appointment and stated that the interviewing panel interviews the candidate, and then the matter is referred to the School Governing Body for recommendation and the ultimate decision to appoint is made by the Department. He confirmed that the Department deals with the technical side of the appointment.
The applicant’s representative then closed their case and the respondent’s representative opened their case by calling their 1st witness Mrs. Estelle Swartz who testified as follows:
- That she works for the respondent as a Chief Education Specialist – Institutional Development and Management and is responsible for the management of schools in the East London District.
- She confirmed that Mr Chetty was first recommended by the SGB to be appointed in the position in question but was not appointed because he did not qualify for the position in question. She stated that the HOD post in question required a candidate who has a qualification to teach in the FET phase and Mr. Chetty did not possess such a qualification.
- She averred that Mr. Chetty has a qualification NPDE in Intermediate and Senior phase and not at the FET phase and if the position was at the Intermediate phase the applicant was going to qualify. She stated that the qualification must correspond with the phase for which the person is going to teach, and a candidate cannot have NPDE in Intermediate phase and be allocated to teach the FET phase.
- She confirmed that the applicant Mr. Chetty may have subjects English in his qualification, but the issue is whether the person has a qualification corresponding with the phase for which he is going to teach.
- She stated that the modules that constitute a subject and subjects that constitute qualifications must be in the appropriate area or a phase for one to qualify to teach in that phase. She confirmed that Mr. Chetty is appropriately qualified to teach in the intermediate phase.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
15. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to affect the 1st recommendation of the SGB.
16. The respondent appointed the 2nd respondent because he was recommended as no 1 by the SGB after the SGB changed its decision to recommend the applicant. It is not in dispute that the 2nd respondent met the minimum requirements of the position of HOD – FET in relation to all the attributes.
17. It is however in dispute whether the applicant met the minimum requirements of the said position and it is for this reason that the applicant’s recommendation was rejected by the Department of Education – Eastern Cape. Mrs. Swartz gave clear evidence that the applicant qualified to teach at the intermediate phase and not the FET phase and that this position was for HOD – FET phase and therefore he did not qualify to be appointed to this position.
18. The Department of Education correctly intervened when they received the recommendation of the applicant by referring the recommendation back to the SGB rather than just effecting the appointment of the 2nd respondent.
19. The SGB was convinced with the argument and advice of the Department of Education and changed the recommendation to put the 2nd respondent as no 1 recommended candidate. This means that the first decision of the SGB to put the applicant as no 1 was nullified by the 2nd decision.
20. The 2nd decision to recommend the 2nd respondent for appointment is an appropriate and legitimate decision of the SGB. There was nothing wrong with the respondent technically advising the SGB and the SGB changing its decision based on that advice.
21. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant feel that the respondent acted unfairly by short listing the applicant and that this means that the applicant is eligible to be appointed in this position.
22. The short-listing panel believed that the applicant qualified until the SGB was advised by the respondent and that there is no prejudice that the applicant has suffered because of his short listing. Failure by the respondent to appoint the applicant who according to the qualifications does not qualify cannot be regarded as unfair. The applicant’s representative’s argument that failure to pick up this issued at short listing stage entitles the applicant to be eligible to be appointed, is rejected.
23. The issue that this award must deal with is whether the Department of Education was justified in advising the SGB on what they had overlooked. The short answer to this question is that the respondent was justified in referring this matter back to the SGB for further recommendation.
24. The necessary recommendation to appoint the 2nd respondent was made by the appropriate body, SGB before the appointment of the 2nd respondent by the department of education. The substantive issue is simply that the applicant does not qualify to teach at the FET phase.
25. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced in this matter. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.
26. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonably and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.
27. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a part, 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.
28. 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.
29. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.
30. If one looks at how the discretion was applied by the respondent in this case, the employer cannot be ordered to appoint someone who does not meet the exact requirements for the position. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decisions above exist for him to challenge the application of the employer’s discretion.
31. There is a clear basis for the respondent to act in the manner described above and the way this discretion was exercised justifies the appointment because the discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying its mind and obviously not unfairly.
32. I know of no authority and none has been cited for the proposition that the courts would interfere at all with the exercise of discretionary power when such power has been exercised fairly and reasonably. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.
33. The appointment of the successful candidate and the non – appointment of the applicant was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
34. In the circumstances I make the following award.
AWARD
35. The appointment of the successful candidate referred to as the (2nd respondent) Mr. T. Mapua and non – appointment of the applicant Mr. R. Chetty was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
36. The applicant’s, dispute referral dealt with under case number PSES607-17/18 EC is hereby dismissed.
Signature:
Commissioner: Malusi Mbuli
Province: Western Cape
Applicant: Naptosa obo Ramon Jayde Chetty
Respondent: 1st Respondent Depatment of Education Western Cape & 2nd Respondent T Mapua
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Education Leadership Institute offices in East London
Award Date: 3 May 2018
Arbitrator: Malusi Mbuli
Case Number: PSES607-17/18 EC
Panelists: Malusi Mbuli
Date of Award: 03-05-2018
In the ARBITRATION between
Education Leadership Institute offices in East Londonobo RAMON JAYDE CHETTY
(Applicant)
And
DEPARTMENT OF EDUCATION (EASTERN CAPE)
(1st Respondent)
T. MAPUA
(2nd Respondent)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
The appointment of the 2nd respondent and the non – appointment of the applicant was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (a) of the LRA.
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the Education Leadership Institute offices in East London on the 25th of April 2018 before Commissioner M. Mbuli.
2. The applicant Mr. R. Chetty attended the hearing and was represented by Mr. K. S. Dalasile an official of the applicant’s trade union NAPTOSA.
3. The respondent Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. W. Hena, an official of the respondent. The 2nd respondent Mr. T. Mapua also attended the hearing and was represented by Mrs. T. Peterson an official of the 2nd respondent’s trade union SADTU.
4. The matter was finalized on the same day the 25th of April 2018 and the parties agreed to file their closing arguments not later than the 03rd of May 2018.
ISSUE TO BE DECIDED
5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, a male person applied for a position of an HOD – FET – English grade 10 - 12 at Alphandale Senior Secondary School in the East London District of the respondent. The applicant was shortlisted, interviewed and initially recommended as no 1 for appointment to the said position but was not appointed to the position.
7. Four candidates were recommended in terms of section 6 of the Employment of Educators Act including the 2nd respondent and the 2nd respondent was first recommended as no 2 and later as no 1 to the Department of Education.
8. The Governing Body recommended the 2nd respondent for appointment to the said position after they had obtained an advice from the Department of Education – Eastern Cape when the respondent refused to appoint the applicant who was first recommended as no 1 candidate.
9. The 2nd respondent is now occupying the position and the applicant felt that the process that led to the appointment of the 2nd respondent and his non – appointment was unfair and constituted an unfair labour practice.
10. It is not in dispute that both the applicant and the 2nd respondent qualified for the position but the issue in dispute is whether the respondent was justified or had valid reasons to reject the recommendation of the SGB and refer the matter back to the S.G.B for further recommendation.
11. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the SGB after the matter was referred to the SGB for further consideration. The parties agree that the decision or power to recommend a candidate to the department rests with the SGB and that the decision to appoint rests with the Department of Education - EC.
12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 25th of April 2018.
SURVEY OF EVIDENCE
13. Summary of the evidence led by the applicant.
The applicant applied for the position of an H.O.D – FET phase at Alphandale Senior Secondary School in the East London District of the respondent. He was an educator employed by the respondent having thought for 10 years before he applied for the said post, was shortlisted and interviewed for the said position of the H.O.D.
He testified that the requirements for the position in question were RQV 13 and 3 years experience and he has English 3 that qualifies him to teach English at the FET phase. He stated that he is studying towards a B. Ed degree and has received credits and credited to his NPDE qualification in recognition of prior learning.
He stated that he has an NPDE & ACE qualification in the Intermediate and Senior phase and does not have a qualification in the FET phase. He attended the interviews and did not register any objections.
The applicant concedes that both himself and the 2nd respondent met the minimum requirement of the H.O.D post and that they were therefore eligible for appointment to the said position. Applicant avers that before the position was filled he has been teaching in the FET phase and had been doing managerial duties for the school and the department. He confirmed that his teaching in the FET phase was an internal arrangement at the school.
He confirmed the process of appointment and stated that the interviewing panel interviews the candidate, and then the matter is referred to the School Governing Body for recommendation and the ultimate decision to appoint is made by the Department. He confirmed that the Department deals with the technical side of the appointment.
The applicant’s representative then closed their case and the respondent’s representative opened their case by calling their 1st witness Mrs. Estelle Swartz who testified as follows:
- That she works for the respondent as a Chief Education Specialist – Institutional Development and Management and is responsible for the management of schools in the East London District.
- She confirmed that Mr Chetty was first recommended by the SGB to be appointed in the position in question but was not appointed because he did not qualify for the position in question. She stated that the HOD post in question required a candidate who has a qualification to teach in the FET phase and Mr. Chetty did not possess such a qualification.
- She averred that Mr. Chetty has a qualification NPDE in Intermediate and Senior phase and not at the FET phase and if the position was at the Intermediate phase the applicant was going to qualify. She stated that the qualification must correspond with the phase for which the person is going to teach, and a candidate cannot have NPDE in Intermediate phase and be allocated to teach the FET phase.
- She confirmed that the applicant Mr. Chetty may have subjects English in his qualification, but the issue is whether the person has a qualification corresponding with the phase for which he is going to teach.
- She stated that the modules that constitute a subject and subjects that constitute qualifications must be in the appropriate area or a phase for one to qualify to teach in that phase. She confirmed that Mr. Chetty is appropriately qualified to teach in the intermediate phase.
ANALYSIS OF EVIDENCE AND ARGUMENT
14. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
15. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to affect the 1st recommendation of the SGB.
16. The respondent appointed the 2nd respondent because he was recommended as no 1 by the SGB after the SGB changed its decision to recommend the applicant. It is not in dispute that the 2nd respondent met the minimum requirements of the position of HOD – FET in relation to all the attributes.
17. It is however in dispute whether the applicant met the minimum requirements of the said position and it is for this reason that the applicant’s recommendation was rejected by the Department of Education – Eastern Cape. Mrs. Swartz gave clear evidence that the applicant qualified to teach at the intermediate phase and not the FET phase and that this position was for HOD – FET phase and therefore he did not qualify to be appointed to this position.
18. The Department of Education correctly intervened when they received the recommendation of the applicant by referring the recommendation back to the SGB rather than just effecting the appointment of the 2nd respondent.
19. The SGB was convinced with the argument and advice of the Department of Education and changed the recommendation to put the 2nd respondent as no 1 recommended candidate. This means that the first decision of the SGB to put the applicant as no 1 was nullified by the 2nd decision.
20. The 2nd decision to recommend the 2nd respondent for appointment is an appropriate and legitimate decision of the SGB. There was nothing wrong with the respondent technically advising the SGB and the SGB changing its decision based on that advice.
21. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant feel that the respondent acted unfairly by short listing the applicant and that this means that the applicant is eligible to be appointed in this position.
22. The short-listing panel believed that the applicant qualified until the SGB was advised by the respondent and that there is no prejudice that the applicant has suffered because of his short listing. Failure by the respondent to appoint the applicant who according to the qualifications does not qualify cannot be regarded as unfair. The applicant’s representative’s argument that failure to pick up this issued at short listing stage entitles the applicant to be eligible to be appointed, is rejected.
23. The issue that this award must deal with is whether the Department of Education was justified in advising the SGB on what they had overlooked. The short answer to this question is that the respondent was justified in referring this matter back to the SGB for further recommendation.
24. The necessary recommendation to appoint the 2nd respondent was made by the appropriate body, SGB before the appointment of the 2nd respondent by the department of education. The substantive issue is simply that the applicant does not qualify to teach at the FET phase.
25. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced in this matter. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.
26. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonably and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.
27. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a part, 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.
28. 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.
29. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.
30. If one looks at how the discretion was applied by the respondent in this case, the employer cannot be ordered to appoint someone who does not meet the exact requirements for the position. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decisions above exist for him to challenge the application of the employer’s discretion.
31. There is a clear basis for the respondent to act in the manner described above and the way this discretion was exercised justifies the appointment because the discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying its mind and obviously not unfairly.
32. I know of no authority and none has been cited for the proposition that the courts would interfere at all with the exercise of discretionary power when such power has been exercised fairly and reasonably. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.
33. The appointment of the successful candidate and the non – appointment of the applicant was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
34. In the circumstances I make the following award.
AWARD
35. The appointment of the successful candidate referred to as the (2nd respondent) Mr. T. Mapua and non – appointment of the applicant Mr. R. Chetty was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
36. The applicant’s, dispute referral dealt with under case number PSES607-17/18 EC is hereby dismissed.
Signature:
Commissioner: Malusi Mbuli