Case Number: PSES530-18/19WC
Province: Western Cape
Applicant: NUPSAW OBO A LATEGAN
Respondent: 1st Respondent Department of Education Western Cape and 2nd S Swarts
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education - Western Cape in Cape Town
Award Date: 25 April 2019
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES530-18/19WC
Date of Award: 23 April 2019
In the Arbitration between:
NUPSAW OBO A LATEGAN
DEPARTMENT OF EDUCATION – WESTERN CAPE
Union / Applicant’s representative: V Shwane
Telephone: 021 945 1121
Telefax: 021 945 1106
1st Respondent’s representative: C Hanekom
Telephone: 021 467 2373
Telefax: 021 425 8612
2nd Respondent’s representative: C Harris
Telephone: 021 686 8521
Telefax: Not available
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 26 March 2019 at the premises of the Department of Education - Western Cape in Cape Town. The proceedings were digitally recorded.
2. Mr. V Shwane, the Provincial Organiser of NUPSAW, represented the Applicant, Mr. A B Lategan. Ms. C Hanekom represented the 1st Respondent, the Department of Education – Western Cape (hereinafter referred to as the WCED).
3. The 2nd Respondent, Ms. S Swarts was joined because of the relief that the Applicant is seeking. She was represented by Ms. C Harris, an official of NAPTOSA.
4. I received the written closing arguments from Mr. Shwane and Ms. Hanekom on 2 April 2019. The 2nd Respondent did not submit a written closing argument.
THE ISSUE IN DISPUTE
5. I must determine whether the conduct of the Respondent constitutes an unfair labour practice in relation to promotion and if so, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
6. The Applicant is employed as a post level 1 educator at Malibu High School. He has been working at the school for the past 28 years. He is teaching Economics to grades 10, 11 and 12 and Natural Science to grade 10.
7. The Applicant applied for the post of HOD Business Studies and Economics at Malibu High School which was advertised as Post No 306 in Vacancy List 1/2018.
8. The School Governing Body (SGB) shortlisting panel decided on 9 May 2018 on the shortlist of candidates to be interviewed. The Applicant was not shortlisted for the post. On 14 May 2018 the Applicant lodged a grievance about the fact that he was not shortlisted for the post. The grievance was not resolved internally and on or about 1 October 2018 the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC. When the dispute could not be resolved through conciliation the Applicant requested for arbitration of the dispute. No pre-arbitration conference was held between the parties.
9. The Applicant claims that the WCED committed an unfair labour practice in relation to promotion. The Applicant seeks an order to the effect that the appointment of Ms. Swarts be set aside and for the process to be redone. The WCED denies any unfair conduct.
SUMMARY OF EVIDENCE AND ARGUMENT
10. Both parties presented bundles of documents into evidence. The Applicant testified and called a leaner of Malibu High School to testify. The learner is a minor and to protect his identity he will be referred to as “Learner A”. The WCED called the Principal of Malibu High School, Mr. David Links and the SGB chairperson, Mr. Nicola Jaars, as its witnesses. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The Applicant’s evidence
11. Mr. A Lategan testified under affirmation. Mr. Lategan gave an overview of his employment history and explained that he has acted in the HOD post in the 90s and for a few weeks in January 2018. He said that Ms. Swarts acted in the post from February 2018 until her appointment in August 2018.
12. He applied for the HOD post twice before but was unsuccessful. He applied for a 3rd time in 2018 for the post. Mr. Lategan referred to the advertised requirements for the post and submitted that he thought that he had a good chance to be promoted taking into account his years of experience and all his qualifications.
13. Mr. Lategan testified that on 8 May 2018 he received a notice to attend a disciplinary hearing. He stood accused of assaulting grade 8 leaners. He said that on 28 August 2018 the WCED found him not guilty of the allegations. Mr. Lategan submitted that the SGB must have known about the disciplinary hearing and that it has clouded their judgment.
14. Under cross-examination, Mr. Lategan confirmed that his acting as HOD Business Studies and Economics is not reflected in his CV. It was pointed out to Mr. Lategan that there is a discrepancy in his employment history as it is stated on the CV that he was at Athlone College of Education from 1981-01-01 – 2015-12-31 but at Malibu High School from 1990-01-01. It was put to Mr. Lategan that the shortlist criteria had a special weighting for Business Studies and Economics and that his CV does not clearly explain his experience in Business Studies and Economics but speaks more about his leadership and legal qualifications. He replied that he referred to his educational experience in general.
15. Learner A testified under oath. He is a learner at Malibu High School. He confirmed that the allegations Mr. Lategan was accused off were made up and were false.
The Respondent’s evidence
16. Mr. David Links testified under oath. He is the Principal of Malibu High School and was a member of the SGB shortlisting panel.
17. Mr. Links explained that it was predetermined by the shortlist panel that the top 5 candidates with a cut-off score of 50% will be interviewed. The shortlist criteria were also pre-determined and the candidates were scored according to the criteria. Mr. Lategan achieved a score of 48.97%.
18. Under cross-examination Mr. Links testified that the unions were invited to the shortlist process but did not attend. A WCED representative was also present during the interviews. He said that the shortlist panel did not look at the names of the candidates but at the content of the CV’s. It was put to Mr. Links that one of the SGB panellist did not score Mr. Lategan on HOD experience whereas his CV reflects HOD experience. Mr. Links replied that he did not score the CV of Mr. Lategan.
19. Mr. Nicolas Jaars testified under oath. He is the SGB chairperson of Malibu High School. Mr. Jaars confirmed the shortlist process as it is reflected in the minutes of the shortlisting committee. The shortlist panel initially decided on a cut off score of 60% but because they wanted to interview 5 or 6 candidates the cut off score was lowered to 50%. The Applicant did not make this cut-off score.
20. Under cross-examination Mr. Jaars said that the criteria were not changed and that all candidates were subjected to the same criteria. Mr. Jaars testified that he was not aware of the misconduct allegations against Mr. Lategan when he scored Mr. Lategan’s CV. Mr. Jaars was questioned about the scores that he had awarded to the Applicant on certain criteria. He testified that he decided on the respective scores based on the information in the CV.
21. The closing arguments of the parties are on record. I do not find it necessary to repeat it here. I have taken it into account and will refer to in my analysis of the evidence and argument to the extent that I need to. In short, the Applicant argued that the WCED has acted unfairly in the shortlisting process resulting in the Applicant being denied a fair opportunity to compete for the post. The WCED argued that the shortlisting process that was followed was fair and that the Applicant has not been unfairly prejudiced.
ANALYSIS OF EVIDENCE AND ARGUMENTS
22. Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, defines an unfair labour practise any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to promotion. The onus is on the Applicant to prove unfair conduct on the part of the Respondent (Ethekwini Municipality vs SA Local Governing Bargaining Council & Others  JOL 23625 (LC)).
23. I will begin by briefly setting out the principles to should be taken into account when dealing with promotion disputes.
24. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court amply sets out the governing law on promotional disputes and goes on providing the following principles to determine unfair conduct relating to promotions:
• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. See also PSA obo Department of Home Affairs (1999) 6 BLLR 577 (CCMA) where it was held that “...it must be stated that an employer cannot be said to have committed an unfair labour practice simply because it makes an unwise choice of candidate…”
25. In SARS v SSSBC & Others (2010 P54-09 (LC) Basson, J held as follows:
• the decision not to promote should be exercised in a manner that does not constitute an unfair labour practice;
• the definition of an unfair labour practice refers to any unfair act or omission that arises between an employer/employee involving unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA ’95. This definition has been interpreted by the LAC in Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion;
• the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promote is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion;
• the role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Contra: see Minister of Safety & Security v SSSBC & Others (2009) 18 LC 1.15.52 where it was held that an employer does not per se have an unfettered discretion when deciding whom to promote/the employer is not shielded from blatant forms of unfair labour practices.
26. In City of Tshwane Metropolitan Council of South Africa v South African Local Government Bargaining Council  12 BLLLR 1176 (LC) the judge referred with approval to the two-stage approach outlined in Ndlovu v CCMA and Others (2000) 21 ILJ 1653 (LC) to determine if the failure to promote an employee was unfair, namely, that:
 ...it can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.
 the next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to be that no question of unfairness can arise.
27. Having the abovementioned principles in mind, I will now evaluate the Applicant’s case.
28. NUPSAW argued that the shortlist panel comprised of the SGB as a whole and not a subcommittee of the SGB and that this composition of the shortlist panel prejudiced the Applicant. But it does not explain how the Applicant was prejudiced by the composition of the shortlist panel. I am not aware of any legislation or agreement prescribing that the shortlist panel must only be a subcommittee of a SGB that may not comprise of the whole SGB.
29. NUPSAW argued that the union representatives were not present during the shortlisting process. The evidence of Mr. Links which is corroborated by the minutes of the shortlisting panel show that the unions were indeed invited to the process. The unions have only observer status and their presence is not a requirement.
30. NUPSAW questioned why a learner representative was not present; why Mr. Links was the secretary of the panel; why Mr. Solomons was the WCED representative and submitted that the SGB members were inexperienced. These issues were not properly canvassed during the arbitration and it is unclear what prejudice, if any has been suffered, particularly by the Applicant, in this regard.
31. NUPSAW further argued that Mr. Jaars did not know what he was doing when he scored the Applicant’s CV and that he could not explain why he gave the Applicant a score of 3 on certain criteria. Regard must be had to the fact that the scoring of a CV based on criteria is not a scientific process. The best one can expect is consistency in the scoring of candidates. In this regard there is no evidence that a different methodology was used when the other candidates were scored.
32. In my determination the shortlisting process was not arbitrary. All candidates were scored using the same criteria and the criteria was based on the requirements for the post. Even if I accept that some mistakes may have been made in the scoring, the evidence does not persuade me that the shortlisting process was seriously flawed. The courts have held that one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions (Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng case number 02/15349;  JOL 17802 (W); Douglas Hoerskool 7 ‘n ander v Premier Noord-Kaap 7 andere 1999 (4) SA1131 (NC) at 1144l-1145l). The fact is that the Applicant did not achieve the cut-off score of 50%. Six candidates who were interviewed all met the cut-off score, which included Ms. Swarts. The worst of those candidates scored 53.1% and the best scored 66.21%. The Applicant scored 48.97%.
33. NUPSAW questioned whether the shortlisting panel was not influenced by the misconduct allegations against the Applicant. Clearly if there is such a connection the process may have been tainted. Mr. Jaars however testified that he was unware of the allegations when he scored the Applicant’s CV. There is no evidence to suggest that his testimony is untruthful. On the available evidence I can find no connection between the misconduct allegations and the fact that the Applicant was not shortlisted.
34. No evidence was presented by the Applicant party (who bears the onus) that Ms. Swarts does not have the necessary qualifications, experience and attributes that is required for the HOD position. It must also be borne in mind that the SGB is not the appointing authority. The authority to appoint lies with the WCED’s Head of Department. The Head of Department has a discretion to appoint any of the nominated candidates.
35. The Applicant was a strong candidate and he was expecting to be shortlisted. But the evidence presented during this arbitration does not persuade me that the shortlisting process was arbitrary or seriously flawed or that the discretion exercised by the WCED to appoint Ms. Swarts, was grossly unreasonable or made in bad faith.
36. For all the above reasons I find that the Applicant has failed to discharge its onus in proving an unfair labour practice relating to promotion. The relief that the Applicant is seeking must accordingly fail.
37 The 1st Respondent, the Department of Education – Western Cape has not committed an unfair labour practice relating to promotion. The application is dismissed.
ELRC Panellist: Jacques Buitendag