Case Number: PSE341-18 /19EC
Province: Eastern Cape
Applicant: NAPTOSA obo Yvette Van Briesies
Respondent: Department of Higher Education and Training (DHET) – Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Port Elizabeth TVET College , Russell Road Campus
Award Date: 13 January 2019
Arbitrator: Hadley Saayman
Case Number: PSE341-18 /19EC
Panelist: Hadley Saayman
Date of Award: 13 January 2019
In the ARBITRATION between
NAPTOSA obo Yvette Van Briesies
Department of Higher Education and Training (DHET) – Eastern Cape
Applicant’s representative: Adv. G.D. Saayman
Applicant’s address: 10 Herculus Street
Respondent’s representative: Mr. L.Mpati
Respondent’s address: 123 Francis Baard Street
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) for 5 December 2018 at Port Elizabeth TVET College , Russell Road Campus . The Applicant was represented by Adv.G.D Saayman an Executive Officer of NAPTOSA and the Respondent was represented by Mr. L.Mpati an Assistant Director - Labour Relations. The hearing was digitally recorded.
ISSUE TO BE DECIDED
2. I am required to determine whether the respondent acted unfairly towards the Applicant in not shortlisting the Applicant for an Acting position as Head of Department-HOD (post-level 3), Port Elizabeth TVET College, Russell Road Campus, as advertised internally.
BACKGROUND TO THE ISSUES
3. The Applicant is permanently employed as a Lecturer on post-level 1 at the Respondent’s Port Elizabeth TVET College, Russell Road Campus since 1 March 2010. The Applicant is also acting as a Senior Lecturer (Part-time co-ordinator) on post-level 2 at the Port Elizabeth TVET College, Russell Road Campus since March 2014. The Applicant applied for an acting position as a HOD at the Port Elizabeth TVET College, Russell Road Campus, but was not shortlisted by the Respondent.
4. Regarding relief, the applicant seeks compensation.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA) , relevant to the dispute at hand.
6. The Applicant testified that she holds the following qualifications: Senior Diploma in Education, Diploma in Technical Financial Accounting, a BA degree and is on REQV level 14. She was permanently employed as a Lecturer (post-level1) during March 2010 and acting as a Senior-Lecturer (post-level 2) since 2014. During March 2018, she applied for an acting position as HOD (post-level 3).She heard from colleagues that she was not shortlisted and immediately contacted her Union, who advised her to pursue the matter. After a few days, the Vice-Principal: Corporate Services, Mr D. Baartzes send her an Internal Memo, dated 25 May 2018 wherein he outlined the reasons for her not being shortlisted, inter alia:
• The applicant does not meet with the requirement to be appointed in the Acting HOD position in terms of the PAM Chapter D paragraph 1.3 (a)(iii):” An Educator may only be appointed to act in a post that is one post level higher than his/her current position.”
• The vacancy (Acting) HOD arises by virtue of an educator vacating a DHET substantive post.
• The applicant is duly appointed in a post-level 1 position.
• In order to be appointed in an acting capacity, the applicant should be duly appointed as a post-level 2 educator.
7. The Applicant testified that during 2016 her colleague, Mr K.D. Knowles a Lecturer (post-level1) also applied for an Acting position as HOD (post-level 3) and was duly appointed by the Respondent. During 2017 another colleague, Ms Matinka a Senior Lecturer (post-level 2) also applied for an acting position as Campus Head/Manager (salary-level 10) and was duly appointed by the Respondent. Ms Matinka, who has subsequently been permanently appointed as Campus Head/Manager, encouraged all acting staff to apply for permanent positions.
8. The Applicant further testified that she does not have an issue with the incumbent, Ms W. Le Roux, who is currently acting as HOD and is not challenging the fact that the incumbent is acting as HOD. The Applicant regards herself as competent and previously assisted with the tasks of HOD.
9. The Respondent called Mr Dorian Baartzes, the Deputy/Vice-Principal: Corporate Services of the TVET College Russell Road Campus. Mr Baartzes testified that the acting position for HOD (post-level 3) became vacant when the Lecturer (HOD) retired. The College advertised the vacancy internally and with regard to qualifications and experience the criteria as, inter alia:
• This vacancy is only applicable to currently employed Post Level 2’s Educational Specialist as per stipulations of the PAM document on Acting.
• Advance Computer skills (MS Word, MS excel, and Power Point).
• A valid code 08 driver’s licence.
10. With regards to acting allowances Mr Baartzes referred to the Personnel Administrative Measurers (PAM) dated 12 February 2016 paragraph C4.1.3 “An educator may only be appointed to act in a post that is one post level higher than his/her current position.”
11. Mr Baartzes testified that acting positions are for a short periods. The Applicant was not shortlisted for the Acting position as HOD and he personally furnished the Applicant with written reasons why she was not shortlisted.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: ( 2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving — (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provi-sion of benefits to an employee;…
13. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
14. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the Act.
15. The Applicant submitted that she is competent and not only performing her duties excellent, but also basically doing the job of an HOD by managing a contingent of students as well as all other adminis-trative duties and co-ordination to ensure the effective operation of the College for about four years , whilst acting as a Senior Lecturer (post-level 2).
16. The Respondent argued that, because the Applicant was not permanently employed by the Depart-ment of Higher Education on a post-level 2 position, the Applicant does not meet the requirements to be shortlisted for an acting position on a post-level 3. However, if it was a permanent post-level 3 position, the applicant would have met the requirements in terms of experience.
17. The Respondent submitted that the applicant has two employers, namely the Department of Higher Education and Training (DHET) with whom she is permanently employed as a Lecturer (post-level 1) and the Port Elizabeth TVET College Russell Road Campus with whom she is appointed as an acting Senior Lecturer (post-level 2).
18. It was common cause that the Applicant is acting as a Senior Lecturer (post-level 2) for about four (4) years. It was also common cause that the advertisement for the acting HOD position was advertised internally by the College and that the College pays the acting allowances. Mr Baartzes also conceded that the advertisement did not state that whether an educator should be permanently employed on a post-level 2 position.
19. It was further common cause that Mr Knowles is also a Lecturer (post-level1) and was acting as a HOD (post-level3) during 2106 as well as Ms Matinka, a Senior Lecturer (post-level 2) was acting as Campus Head/Manager (salary level 10) during 2017. The Respondent argued that the latter position was a support staff position. The Respondent submitted that it did away with the practice whereby employees acting in positions more than one level above their permanent post-level. It is clear that even during 2016 as well as 2017 that practice continued, even after the migration of the College to fall under the auspices of the DEHT in 2015. The Respondent may have in the past breached PAM in ap-pointing individuals to act in higher positions that are in conflict with PAM, such appointments were ir-regular and illegal. An illegal or an irregular act cannot on the grounds of inconsistency render a contra-ry conduct to be unfair.
20. The Respondent could not rationally justify the elimination of the Applicant for shortlisting. The Adver-tisement refers to an acting Senior Education Specialist position. The Advertisement also requires ex-perience as a Post-level 2 Lecturer. The advertisement did not state which post-level the vacancy was for and for what period .Mr Baartzes could not explain why the advertisement refers twice to a Senior Education Specialist. In fact, Mr Baartzes was convinced that it was a typing error, although he fur-nished the applicant with a letter stating that she did not meet the requirements for shortlisting as an acting HOD. Mr Baartzes indicated that he did not draft the advertisement, but that he requested the educators to draft it and then the Human Resources Department finalised it. Mr Baartzes claimed that although it is an internal vacancy, he applied the requirements as set out by PAM. It appears on the first page of the advertisement (as per page 20 the Respondent’s bundle) as if the advertisement was finalised, since it ended with contact details for enquiries and that the other requirements (as per page 21 of the Respondent’s bundle) were added afterwards and only ended with a contact number for en-quiries.
22. Mr Baartzes testified that acting positions are usually for short periods. However, the applicant is act-ing for about four years as a Senior Lecturer (post-level 2) in order to ensure the effective operation of the College. Furthermore the incumbent, Ms W. Le Roux is still acting as HOD.
23. The Labour Appeal Court recently considered the balance that must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that la-bour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. It also highlights the requirements that employers must comply with so that not promoting a candidate for promotion would be viewed as fair by the labour tribunal or court. The court appears to recognise only one type of promotion, namely competitive promotion, where the internal candidate must compete with persons from outside the workplace for what would be a promo-tion for him or her. However, there are divergent views in case law relating to what qualifies as a pro-motion for purposes of section 186(2) of the Labour Relations Act 66 of 1995, and which instances would be covered by the protection against unfair labour practices relating to promotion.
24. In the matter of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11)  ZALAC 9 (1 June 2012) that material errors in the recruitment process will render the process unfair, whether or not the decision to appoint can be rationally justified. However, the Applicant applied for an acting position that is of a temporary nature. The Applicant was not applying for promotion nor was she applying to be appointed in a permanent position. Hence, the conduct complained of by the Applicant does not amount to an unfair labour practice relating to promotion.
25. It follows that although the Respondent’s conduct has denied the Applicant a fair opportunity and there-by prejudiced her in presenting her candidature, does not fall within the ambit of Section 186 (2) of the LRA.
26. I therefore find that the Applicant is not entitled to the relief sought.
27. The Respondent the Department of Higher Education and Training did not commit an unfair labour practice as contemplated by Section 186(2) of the LRA.
28. The Applicant ,Ms Yvette Van Briesies is not entitled to the relief sought.
Commissioner: Hadley Saayman