Case Number: PSES 576-17/18 KZN
Applicant: NAPTOSA on behalf of STELLA GOVENDER
Respondent: DEPARTMENT OF EDUCATION – KWAZULU NATAL
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 27 May 2018
Arbitrator: A. DEYZEL
Panelist: A. DEYZEL
Case No: PSES 576-17/18 KZN
Date: 27 May 2018
In the matter between
NAPTOSA on behalf of STELLA GOVENDER Applicant
DEPARTMENT OF EDUCATION KZN Respondent
Applicants’ representative: Ms M.C. Mopp
Applicant’s address: NAPTOSA
Block A, Canford Park
53 Anthone Road
Tel: 076 141 2796
Fax: 031 563 1611
First respondent’s representative: Mr M. Bejanath
First respondent’s address: Department of Education
DETAILS OF HEARING AND REPRESENTATION
1. On 6 November 2017 the applicant referred a dispute to the ELRC for conciliation. She alleged that she was appointed as the head of department: senior primary phase at the St Anthony’s Catholic Primary School on 3 April 2017 and that she was notified on 16 October 2017 that the appointment was withdrawn. In her view she was “demoted without just cause.”
2. A conciliation meeting was held on 27 November 2017. The dispute could not be resolved through conciliation and a certificate to such effect was issued. In the certificate it was indicated that the dispute concerned an alleged unfair labour practice and that it relates to appointments and promotion.
3. On 15 December 2017 the applicant requested that the dispute be resolved through arbitration.
4. The arbitration was set down for hearing on 19 February 2018. On that day Ms Singh , the incumbent in the post in question, appeared as a party joined to the matter and certain jurisdictional points were raised. Ms Singh was represented by an attorney, Mr Rorick. The applicant was represented by a union official, Ms Mopp, and Ms Mopp and the applicant repeatedly indicated that the applicant was not seeking any relief that would affect Ms Singh. In the end Mr Rorick asked to be excused in the light thereof that the applicant was not seeking relief that could affect Ms Singh. The applicant and the respondent agreed that it was not necessary for the arbitrator to make rulings relating to the jurisdictional points
5. The arbitration hearing continued on 29 March 2018 and 14 May 2018.
6. The applicant and the respondent requested to file written arguments and they were allowed to do so provided that the written arguments should be filed by 21 May 2018. The written arguments were received on 21 May 2018.
7. The applicant was represented by a union official, Ms M.C. Mopp.
8. The respondent was represented by an official in its employ, Mr Bejanath.
ISSUE TO BE DECIDED
9. It appeared from the opening statements of the parties that the issues to be decided were
(a) Whether the rescission of the applicant’s placement in and/or appointment to the HOD post constituted a demotion and/or an unfair labour practice.
(b) Whether the department revoked the applicant’s contract of employment and, if so, whether it had legal and/or fair grounds for doing so.
(c) Whether the demotion and the reduction of the applicant’s salary was fair and lawful including whether the terms and conditions of the applicant’s employment remained enforceable and whether the applicant remained entitled to the HOD salary.
(d) Whether the ELRC has jurisdiction to determine disputes about unfair and/or arbitrary administrative action and, if so, whether the applicant’s demotion constituted such unfair or arbitrary administrative action.
10. In the applicant’s written argument the issue(s) to be decided were set out as follows:
“Whether the Respondent committed an unfair labour practice, in terms of Section 186(2) of the LRA by procedurally demoting the Applicant and
Whether the cancellation of her promotion to Head of Department, Senior Primary Phase, was substantively and procedurally fair.”
11. The applicant is a level 1 educator at St Anthony Catholic Primary School (“the school”).
12. The post of head of department: senior phase at the school was vacant during the period 20 January 2016 to 3 April 2017 and the applicant acted in that post during that period.
13. The post was advertised in HRM 28 of 2016 as post number 117.
14. The applicant and Ms Singh applied for the post and both of them were shortlisted to be interviewed. They were subsequently interviewed by an interview committee appointed by the school governing body.
15. The school governing body made a recommendation to the Provincial Head of Department regarding the preferred candidates. It indicated that Ms Singh was the most preferred candidate and that the applicant was the second most preferred candidate.
16. By letter dated 6 March 2017 the department notified the applicant that she was appointed to the post with effect from 3 April 2017. Paragraphs 2 to 6 of the letter read as follows:
2. Please be informed that you have been successfully placed as HEAD OF DEPARTMENT at ST ANTHONY’S PRIMARY. SCHOOL
3. This letter is issued to you to facilitate your assumption of duty to the abovementioned post. Your final letter of appointment reflecting salary and other particulars will follow in due course.
4. It must be mentioned that the Department reserves the right to withdraw your placement to the abovementioned post should it be found that
(c) Your placement was based on procedural incorrectness; or
(d) A dispute/ grievance has been lodged against the post.
5. You are required to assume duty to the above-mentioned school on 3 April 2017. Should you fail to assume duty without any communication to the Department or leave approved by the Department, you placement will be cancelled.
6. Finally, the Department congratulates you on your success for the abovementioned post and trust that you will fulfil all the duties to the post successfully.”
17. At some stage Ms Singh lodged a grievance about not being promoted and later referred a dispute to the ELRC.
18. The applicant was joined as a party to the dispute that Ms Singh referred to the ELRC. The applicant attended the ELRC conciliation meeting on 19 June 2017 and objected to the department withdrawing her appointment to the HOD post.
19. Without consulting the applicant the department settled the dispute lodged by Ms Singh on the basis that the applicant’s placement in the post would be rescinded and that Ms Singh would be placed in the post.
20. On or about the middle of October 2017 and by letter dated 12 October 2017 the applicant was notified that her placement letter was rescinded. The relevant parts of the letter read as follows:
1. The placement letter to the abovementioned post, dated 06/03/07, has reference.
2. It has been discovered that your placement to the abovementioned school was made in error in that the candidate who was ranked as number one was not placed instead you were placed in the post.
3. Your attention is drawn to paragraph 4 (c) of that letter which states that “The Department reserved the right to withdraw your placement for the abovementioned post should it be found that your placement was based on procedural incorrectness.
4. Your placement letter is therefor rescinded due to the above reasons.
5. This letter further serves to advise you that your acting appointment to the post of Head of Department will be terminated with effect from 13 October 2017 as the post will be filled in a permanent capacity.
21. From 13 October 2017 onwards the applicant earned R3 700-00 per month less than she would have earned had she remained in the HOD post.
SURVEY OF EVIDENCE AND ARGUMENT
22. The applicant gave evidence in support of her case. She also called two witnesses namely Ms Therona Moodley, the Provincial CEO of the union, and Ms Colleen Hoover, the previous principal of the school.
23. The applicant’s evidence is summarised in paragraphs 24 to 33 below.
24. The applicant has 19 to 20 years’ experience in the intermediate phase and senior primary phase which she has gained both in South Africa and abroad and she met the requirements for the position advertised as post number 117.
25. The applicant testified that the processes followed was in accordance with procedure set out in the personnel administrative measures in that she was short listed, interviewed and appointed.
26. It was her case that she was the best candidate for the post and that she was correctly appointed to the post with effect from 3 April 2017.
27. She gave evidence to the effect she is more qualified than Mrs Singh to occupy the position as she had more years of experience in teaching in that phase and acted in the position for twenty months. Her management skills and knowledge of the senior primary curriculum was better than that of the other candidates including Ms Singh. Ms Singh was a junior primary educator and was not familiar with senior primary programs. She could not advise senior primary phase educators on curriculum matters and lesson plans.
28. Educators at St Anthony’s Primary School approached the applicant for assistance and guidance in their work and continue to do so, as Ms Singh is unable to assist them.
29. The applicant confirmed that she received the letter dated 12 October 2017 notifying her that her “placement letter” was “rescinded.” She was not consulted prior to the decision to rescind her placement and she did not consent to be demoted. She was not given a hearing or a chance to state her case and she was not given an opportunity to make submissions why her placement/appointment as department head should not be withdrawn.
30. The applicant testified further that she had suffered extreme emotional and psychological trauma due the effects of the said demotion had on her. She consulted a psychologist and a psychiatrist and was booked off from school.
The applicant’s dignity was impaired. The school, the community and the parishioners of the Catholic Church in which she serves, approved her appointment and rejoiced at her getting the promotion. The applicant had to explain to them why she was no longer department head.
31. The applicant also suffered financial loss as her salary dropped by R 3 700 per month. Based on her promotion and concomitant increase, the applicant purchased a new vehicle to be able to travel to school efficiently and safely especially as the HOD she was required to arrive earlier than usual and leave school late. The applicant is now burdened with a situation where she can no longer meet her financial obligations.
34. The applicant’s second witness, Ms Moodley, in effect expressed the opinions and made submissions referred to in paragraphs 35 to 38 below.
35 Paragraph 4 of the letter of placement does not give the employer the right to withdraw the appointment arbitrarily. Due process must be followed and before taking away such a right, the audi alteram partem principle must be observed. Withdrawing the promotion without giving the employee an opportunity to be heard is an unfair unilateral act on the part of the employer.
36. At the time the said letter of placement was given to the applicant a contract came into being as there was a meeting of the minds. The final letter of appointment was merely to inform the successful candidate of her conditions of service and remuneration. This would already be known to the candidate because in education those conditions of service and salary scales are contained in the Personnel Administration Measures. The job description and the salary scales would already be known to the employee. The final letter of appointment is merely a formality and that it is therefore irrelevant whether or not the employees receive such a letter, so Ms Moodley opined.
37. Ms Singh was allocated the highest score during the interview process. The scores allocated to Ms Singh and the applicant did not differ significantly.
38. The Provincial Head of Department has the power to appoint any of the preferred candidates on the list of recommended candidates drawn up by the SGB. The Provincial Head of Department did not make an error in choosing one of the candidates from the list because he had the power to so.
39. Ms Hoover was the principal of the school for 19 years up until August 2016 and retired shortly before the interviews were done. Ms Govender and Mrs Singh are known to her. Her evidence is summarised in paragraphs 39 to below.
40. When the head of department second phase senior primary post became available at the school, Ms Hoover informed the staff that there was a vacancy. She invited all the staff members to apply to act as head of departmen. The only applications she received were from Ms Singh and the applicant.
41. When she received Ms Singh’s CV Ms Hoover called Ms Singh in to discuss her application because she was a junior primary educator and that this was a senior primary head of deapartment post. Ms Singh was therefore not eligible for in terms of the particular HRM 38 of 2015, s 6.1 and 6.6 respectively.
41. Ms Hoover wrote to the SGB chairperson and pointed out that Ms Singh was not eligible as she did not meet with the minimum requirements relating to teaching experience in the Senior Primary Phase. In terms of 6.6 of the particular HRM there were special requirements for the acting department head post and a candidate had to have at least two years teaching experience in the senior primary phase. Ms Hoover confirmed this with the union and the union agreed that Ms Singh was not eligible to apply. Ms Hoover discussed the matter with the chairperson of the SGB. Since the applicant was the only other candidate, she was appointed as acting head of department.
42. Ms Hoover also testified to the work ethic displayed by the applicant. She explained how the applicant’s participation in meetings, extra-curricular activities, and co-curricular activities reflected a teacher with great insight and knowledge.
43. Comparing the applicant and Ms Singh the applicant had the skills qualification and experience in the senior phase. Ms Singh was qualified to teach in the junior phase and did not have experience in the senior phase.
44. The differences between the junior primary phase and senior primary phase include the age of the learners, their emotional development, their understanding skills and the curriculum the content. A comparison between the applicant and Ms Singh, revealed that Ms Singh did not have the required skills or experience whereas the applicant had a wealth of experience and knowledge in the senior primary would. The applicant met the 3 year teaching requirement whereas Ms Singh did not meet that requirement. A head of department is expected to mentor educators and without the relevant experience and knowledge in senior phase Ms Singh would be in a very difficult position with no experience base to draw from.
45 According to Ms Hoover, co-curricular activities are different and more advanced in the senior primary phase and the applicant has an edge over Ms Singh as far as people management, administration and communication were concerned.
46 Ms Hoover retired in August 2016 and the post was announced in March 2017. She was totally shocked and could not understand how the department could have said that an error was made because the applicant fulfilled all the requirements according to the documents. Ms Singh on the other hand did not meet the requirements set out in HRM 28 of 2016.
47. Although Ms Singh may have taught filler subjects such as art and so forth, her teaching was in the junior phase and she did not teach any of the examinable subjects in the senior primary phase such as the core subjects like English, Mathematics, Science, Afrikaans and Social Science, etc.
48. Ms Hoover testified further that Ms Singh lacked CAPS training in the senior primary phase because she was trained in the junior primary phase. There is a content difference in both phases and in the absence of CAPS training a department head could not guide other teachers.
49. Mr Hoover ended her testimony by stating that in her 43 years of teaching she had never experienced a case where an educator received an appointment letter and then that appointment letter is just withdrawn in the absence of any award or court order directing that it be withdrawn.
50. Ms Hoover was not asked any questions when the respondent’s representative was given an opportunity to cross-examine her and the respondent’s representative indicated that her evidence was not disputed by the respondent.
51. The respondent did not call any witnesses to testify on its behalf.
52. The submissions of the parties appear from their written arguments.
53. It was submitted on behalf of the applicant that the respondent’s withdrawal of the letter of placement and the demotion of the applicant and/ or failure to promote the applicant constituted an unfair labour practice. The relief sought was the setting aside of the demotion of the applicant, the withdrawal of the letter of placement of Ms Singh, the withdrawal of the appointment of Ms Singh to Post No 117, and the reinstatement of the applicant in Post No 117.
53. It was submitted on behalf of the respondent that no unfair labour practice occurred and the applicant should not be awarded any relief.
SURVEY OF EVIDENCE AND ARGUMENT
54. Two head of department posts were amongst the posts advertised in HRM 48 of 2016.
55. Post No 39 was the post of head of department junior primary phase at Palmiet Primary School and Post No 117 was the post of head of department senior primary phase, St Anthony’s Catholic Primary School .
56. The SGB of Palmiet Primary School recommended Ms B. P. Zulu as the most preferred candidate for Post 39 and Ms Singh as the second most preferred candidate.
57. The applicant and Ms Singh were amongst the educators who applied for appointment to Post No 117 and after interviews were held, the SGB recommended Ms Singh as the most preferred candidate and the applicant as the second most preferred candidate for that post.
58. The Provincial Head of Department was erroneously led to believe and/or erroneously assumed that Ms Singh had been appointed to Post No 39 at Palmiet Primary School. Because of that the applicant (as the second most preferred candidate for post number 117) was appointed to Post No 117.
59. The applicant disputed that it was due to a mistake that her appointment to the Post No 117 was withdrawn. The applicant also testified that the reason why the Provincial Head of department superseded the number one candidate as per the EHR 11 form was because the Respondent had appointed Mrs Singh in a Junior Primary head of department post at Palmiet Primary School.
60. The respondent referred to a written recommendation that the Head of the HR Services department made to the Provincial Head of Department on 12 July 2017. The recommendation set out the reason why the Provincial Head of Department approved the withdrawal of letter of placement. The relevant parts of the recommendation are set out hereunder
3.4 …. It was discovered that a candidate Ms N. Singh… was captured by Pinetown as number one recommended candidate of post No 39 of HRM 48 of 2017 whereas she was actually the second candidate.
3.5 When the rescindment was approved by HOD, Ms B.P Zulu… who was in fact the correct candidate, was correctly appointed in the post.
3.6 Ms N. Singh also applied for Post No 117 of HRM 48 of 2016 (HOD post - St Anthony’s) and was recommended as No 1 preferred candidate. Ms S. Govender, the second recommended candidate was placed in the post. It must also be pointed out that Ms S. Govender was incorrectly issued with a placement letter and had signed her assumption of duty form on 03 April 2017. Her assumption of duty form has not yet been processed as Umlazi district is waiting for a response from head office. This resulted in S. Singh not placed anywhere.
In view thereof it is recommended that approval be granted by the Head of Department to
4.1 Rescind the post from Ms Govender… and to allow the correct candidate who is Ms Singh to be placed in the Head of Department post at St Anthony’s…”
61. The recommendation proved that the applicant was initially earmarked for appointment to Post No 117. That was why the applicant was given a letter of placement. The letter of placement was not a final letter of appointment and a letter of appointment was to follow in due course reflecting the salary and other particulars. The appointment was subject to a resolutive condition in that the respondent reserved the right to withdraw the placement inter alia if the placement was based on procedural incorrectness or a dispute/grievance had been lodged against the post.
62. In my view the parties tacitly agreed that the respondent may only withdraw the appointment if there was a fair reason for doing so and if a fair procedure was followed. If the placement was based on procedural incorrectness or the existence of a dispute/grievance lodged against the appointment that would constitute fair reasons for withdrawing the appointment depending on the circumstances. In the present case no incorrect procedure was followed during the appointment process. The respondent withdrew the placement of the applicant and in effect withdrew the promotion because a grievance was lodged against the placement of the applicant. That was a fair reason for withdrawing the appointment subject thereto that there were no other considerations of fairness requiring that the applicant should remain appointed in the position. For this reason the applicant should have been given an opportunity to be heard. If the applicant persuaded the respondent that she was the best candidate for the position fairness would have required that the respondent should not withdraw her appointment.
63. The applicant should at least have been given an opportunity to oppose the arbitration proceedings that Ms Singh intended bringing. Instead the respondent entered into a settlement agreement with Ms Singh agreeing to promote her and to set aside the applicant’s promotion without giving the applicant an opportunity to be heard.
64. In a promotion dispute the onus rest with the employee party to prove that the failure to promote or appoint was unfair. The employer party is however obliged to defend attacks on the substantive and procedural fairness of its decision if it wishes to avoid negative outcomes. The respondent was obliged to place evidence of the procedure followed and the reason for the decision to appoint Ms Singh and not to appoint the applicant, before me irrespective where the onus lies.
See Pamplin v Western Education Department and others ( unreported Case No C1034/2015).
65. There was no evidence gainsaying that of the applicant and the evidence of Ms Hoover was not disputed. Their evidence was not improbable and it is accepted. On the accepted evidence the applicant was by far a better candidate for appointment to Post No 117 than Ms Singh; so much so that it was irrational, unreasonable and unfair to withdraw the appointment of the applicant to Post No 117.
66. The applicant was recommended for appointment by the SGB and it was open to the Provincial Head of Department to appoint her to Post No 117 even though she was the second preferred candidate. Section 6 (3) in Chapter 3 of the Employment of Educator’s Act 76 of 1998 does not restrict the appointment powers of the Provincial Head of Department to the most preferred candidate.
67. Not implementing the initial decision to promote the applicant and setting aside the decision to promote the applicant constituted an unfair labour practice relating to promotion.
68. It was submitted on behalf of the applicant that the dispute concerns a demotion. The applicant knew that there was a dispute about the fairness of the promotion process in that she attended the conciliation process in the dispute relating to the failure to appoint Ms Singh. She knew that the promotion process would not be complete until the dispute about the failure to appoint Ms Singh was finalised. The promotion process ended with a decision to promote Ms Singh and not to promote the applicant. The dispute accordingly does not concern a demotion.
69. At the commencement of the hearing the applicant indicated that she was also relying on thereon that the respondent breached the employment contract and that the respondent’s action constituted unfair and/or arbitrary administrative action. It is not clear from the closing argument whether the applicant was still relying on such causes of action. In the absence of any indication to the contrary in the LRA and the ELRC dispute resolution procedures I find that the ELRC does not have jurisdiction to arbitrate such disputes.
70. The following submission was made on behalf of the applicant:
“The Respondent did not produce any evidence to the contrary and as the Second Respondent opted not to be part of proceedings, the Applicant submits that the Commissioner finds in her favour that the Applicant has proven that she is the best candidate for the position and that further setting aside her appointment and appointing Mrs Singh was substantively and procedurally unfair.”
71. The applicant’s written argument concluded with a prayer that the relief sought by the applicant included an order reinstating the applicant in the position of head of department senior phase.
72. As indicated above Ms Singh and her attorney attended the hearing on 19 February 2018 at a time when no evidence was led. The applicant and her representative indicated that the applicant did not apply that Ms Singh be joined as a party to the proceedings and that it was the conciliation commissioner who insisted that Ms Singh be joined as a party. The applicant and her representative repeatedly indicated that the applicant was not seeking any relief that would affect Ms Singh.
73. Ms Singh elected not to participate in the proceedings because the applicant indicated that she was not seeking any relief that would affect Ms Singh. In my view it is not open to the applicant to seek relief that would affect Ms Singh. Ordering the respondent to set aside the appointment of Ms Singh and to appoint the applicant would seriously affect Ms Singh and the applicant cannot be granted such relief in the circumstances of this matter.
74. I considered ordering the respondent to appoint the applicant to another head of department position. Such an order would however be prejudicial to other potential candidates that may meet the requirements for appointment to such position in that they would be deprived of an opportunity to apply for such post
75. The applicant suffered a loss of income in that from onwards 13 October 2017 onwards she earned R3 900-00 per month less than what she would have earned had her appointment to head of department not been withdrawn. The applicant in effect abandoned her claim to be reinstated on 19 February 2018. The loss of income that she suffered over the four month period (from 13 October 2017 to 19 February 2018 amounted to R15 600-00.
76. In all the circumstances I consider it appropriate to order the respondent to compensate the applicant for the unfair labour practice relating to not promoting her.
77. In deciding what compensation to award I took into account a number of factors.
Firstly; the failure to implement the decision to promote the applicant and the decision to withdraw her promotion was grossly unfair.
Secondly; the respondent could have dealt differently with the dispute referred to the ELRC by Ms Singh in that it could have allowed that matter to proceed to arbitration so that the applicant could have defended her appointment; The respondent instead settled the dispute on a basis that the decision to promote the applicant be withdrawn and that Ms Singh be appointed in that position.
Thirdly; the respondent did not consult the applicant before entering into a settlement agreement with Ms Singh.
Fourthly; the applicant performed the functions of head of department for a period of five months. It was embarrassing to explain to colleagues, members of community and church members why she was not longer head of department.
Fifthly; the applicant bought a car after she was promoted and could not afford it any more after the decision to promote her was withdrawn.
Sixthly; the applicant was emotionally affected and had to consult a psychologist and a psychiatrist.
Seventhly: the applicant suffered a financial loss of R16 500-00. Had the applicant’s promotion not been withdrawn she would have continued to earn R3 900-00 or per month more.
78. In all the circumstances I consider it fair to the parties to award compensation in an amount equal to the loss that the applicant would have suffered over a ten month period i.e. R3900-00 times ten.
(a) The failure to promote the applicant, Ms Stella Govender to the position of head of department senior phase at St Anthony’s Catholic Primary School constituted an unfair labour practice relating to promotion.
(b) The respondent, the Department of Education KwaZulu-Natal is ordered to compensate the applicant by paying her an amount of R39 000-00 within fourteen days of being notified of this award.
DATED at DURBAN this 27th day of MAY 2018.