Case Number: PSES659-18/19EC and PSES658-18/19EC
Province: Eastern Cape
Applicant: SAOU obo Billet R and Hart A
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education - Eastern Cape in Port Elizabeth.
Award Date: 27 May 2019
Arbitrator: Anthony Walter Howden
Case No: PSES659-18/19EC and PSES658-18/19EC
In the matter between
SAOU obo Billet R and Hart A Applicant(s)
Department of Education: Eastern Cape Respondent
ARBITRATOR: Anthony Walter Howden
HEARD: 17 May 2019
DATE OF AWARD: 27 May 2019
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair conduct relating to promotion.
DETAILS OF PROCEEDINGS AND REPRESENTATION
1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures Annexure C (Collective Agreement No 6 of 2016). The arbitration was held on 17 May 2019 at the offices of the Department of Education - Eastern Cape in Port Elizabeth.
2. The Applicants, Ms R Billet – Persal number 21782890 and Mr A Hart – Persal number 53210972, were present and were represented by Ms E Hart from SAOU.
3. The Respondent, Department of Education - Eastern Cape, was represented by Mr C Pillay from the Labour Relations Department.
4. On the day the parties requested that Heads of Argument/Closing Arguments be done in writing. It was agreed that the parties would submit written Heads of Argument/Closing Arguments simultaneously on 22 May 2019.
ISSUES IN DISPUTE
5. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice by not accepting the Applicants’ application forms for promotion posts.
BACKGROUND TO THE DISPUTE
6. The Applicant, R Billet, is employed by the Respondent as a Post Level 1 Educator, at Bertram Secondary School.
7. The Applicant, A Hart, is employed by the Respondent as a Post Level 1 Educator, at Hillside Technical High School.
8. The Applicants both applied for promotion posts as advertised in Bulletin 5/2018. Subsequent to Bulletin 5/2018 another Bulletin namely Addendum Bulletin 5/2018 was advertised and it was assumed that the closing date of the Addendum Bulletin was the new closing date for all the positions advertised in both Bulletins.
9. When both Applicants attempted to submit their application forms for promotion posts the Respondent refused to accept the applications, as the applications were allegedly late. The Respondent stated that the closing date for Bulletin 5/2018 had expired.
10. The Applicants’ Representative confirmed on record that the Applicants do not wish to have the successful candidates’ appointments (for both positions) overturned and the whole process re-done afresh. The Applicants’ Representative however requested that the Applicants be compensated accordingly should the award be in their favour.
SURVEY OF EVIDENCE AND ARGUMENT
11. It is common cause between the parties:
- That the Applicant, R Billet, is employed by the Respondent as a Post Level 1 Educator at Bertram Secondary School.
- That the Applicant, A Hart, is employed by the Respondent as a Post Level 1 Educator at Hillside Technical High School.
- The Respondent advertised promotion posts in Bulletin 5/2018 which opened on 21 September 2018 and closed on 12 October 2018.
- The Respondent advertised further promotion posts in an Addendum Bulletin 5/2018 which opened on 5 October 2018 and closed on 23 October 2018.
- That the Applicant, R Billet, applied for a Deputy Principal position at Booysen Park High School - Post Nr 232 and submitted her application form on 22 October 2018.
- That the Applicant, A Hart, applied for an HOD position at Hillside Technical High School - Post Nr 278 and submitted his application form on 19 October 2018.
- That the Respondent had not accepted both Applicants’ application forms as the Respondent had considered them to be late.
- That all internal avenues have been exhausted by the Applicants.
- That the positions the Applicants applied for were not advertised/included in the Addendum Bulletin 5/2018.
12. The issue in dispute is whether the Respondent committed an unfair labour practice by not accepting the Applicants’ application forms for promotion posts. More specifically whether the Addendum Bulletin 5/2018 was a separate Bulletin to Bulletin 5/2018 with its own closing date.
13. Both parties submitted bundles of documents. None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.
14. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.
The Applicants’ Submissions
15. The Applicants’ Representative stated in her Heads of Argument/Closing Arguments that:
a. The Applicants do not agree with the argument that a Bulletin with the same Bulletin number (5/2018) can be regarded as two separate Bulletins, purely on the basis that according to the Respondent it is generally accepted in the “Education fraternity” that the Respondent talks about an “Addendum” as a completely separate and new Bulletin (Vacancy list).
b. The Respondent admitted that the promotion posts advertised in the Addendum Bulletin 5/2018 were an additional five (5) posts for NMB that were erroneously left out of the original Bulletin 5/2018. It is clear confirmation that the Addendum is therefore part of the original vacancy list. (Bundle C pg 45).
c. It is a general understanding without having to refer to the definition in the Oxford dictionary that the word “Addendum” refers to additional information that should be read in conjunction to the original document, in this case Bulletin 5/2018. (Bundle C pg.6 par.18)
d. The latest closing date of 23 October 2018 of the Addendum Bulletin 5/2018 where 5 additional posts for the NMB were advertised superseded the first closing date of Bulletin 5/2018 which was 12 October 2018. Mrs Gysman, the Director HR in East London and Mr Swanepoel, the Director HR in Graaff-Reinet, explained that only districts which had no additional posts advertised in the Addendum Bulletin 5/2018 would have regarded the closing date as 12 October 2018, but that all other districts which had additional posts advertised would have regarded the 23rd of October 2018 as the closing date. That the reason why other districts in the province (excluding Nelson Mandela Bay Metro district office), used the 23rd of October 2018 as the closing date for the promotions post in Bulletin 5/2018, made practical sense for the processes which had to follow, namely sifting, short listing, interviews and submissions for the appointments to be made by the Head of Department for these promotion posts, especially taking into consideration that there is only 7 working days in between the two closing dates in question.
e. Each Bulletin is issued with a significant EDP01 form, which clearly states the (i) type of posts advertised; (ii) the number of the Bulletin. The application form (EDP01) for Bulletin 5/2018 was no different, and clearly stated the following “…Open Post Bulletin: Principals, Deputy Principals and HOD’s at Schools - Volume 5 of 2018” (Bundle C pg.10).
f. There was however, no EDP01 form issued with the Addendum Bulletin 5/2018 and therefore applicants used the original vacancy list’s application form, to apply for the additionally advertised posts in the Addendum. (Bundle C pg.11 – 17)
g. It again confirms that the Addendum Bulletin 5/2018 is not a separate Bulletin as argued by the Respondent, but rather an addition to the original Bulletin. If it was a separate Bulletin, it would definitely have been issued with an EDP01 form that is relevant to the Addendum.
h. That a Bulletin is a Provincial vacancy list, and that the Respondent failed to implement the closing date consistently within the Province.
i. That an Employee could not be held liable for the Respondent’s inability to understand the definition of the word “Addendum” and should not be regarded as a justifiable reason to refuse an applicant an opportunity to compete for advertised posts.
j. That the Applicants were prejudiced by the unfair conduct of the Respondent when they were withheld the opportunity to compete for the posts.
k. That the Employer acted grossly unfair by not attempting to resolve the grievance before appointments were made, by re-advertising these posts.
The Respondent’s Submissions
16. The Respondent’s Representative stated the following in his Heads of Argument/Closing Arguments:
a. The Respondent`s view was quite simple in that the Applicants had failed to submit their applications for the posts for which they had applied and which were contained in Bulletin 5/2018, dated and signed by the SG on 21 September 2018 with a closing date of 12 October 2018 (Bundle B page 33). [The bulletin contained 97 (Bundle B Pages 42 to 48) school promotion posts for Nelson Mandel Bay]. The Applicants’ applications were LATE and could for obvious reasons not be accepted. They can thus not be regarded as applicants or candidates for the posts they claim to have applied for.
b. The Applicants, as a defense, had chosen a different bulletin`s closing date, that of, Addendum to Bulletin 5/2018, dated and signed by the SG on 5 October 2018, with a closing date of 23 October 2018. Wherein only 5 posts were advertised for Nelson Mandela Bay.
c. It is apparent from the above already mentioned that these two bulletins are different “stand alone bulletins or adverts. This is apparent from perusing both of them. The instructional information in both bulletins attests to their uniqueness:
Item 1: Important Information for all Applicants – paragraphs A to L (where paragraph G specially indicates “NO LATE APPLICATIONS WILL BE ACCEPTED).
The Addendum Bulletin 5/2018 has another paragraph M: Minimum requirements for appointment (PAM Chapter B3.2.1) which just again raises what the PAM states about minimum requirements.
Item 2: Summary of Posts – As previously raised, the two bulletins have different posts and different schools. The SG has also signed these two bulletins on 21 September 2018 and 5 October 2018 respectively.
d. The Applicants appeared to have ignored the instructions of the Official Bulletin 5/2018 which they have used to apply for and which clearly indicated the closing date of 12 October 2018. The Applicants chose to base the closing date on a “Management Plan” from the Sarah Baartman District (incorrectly so) as they attached the Provincial Management Plans duly signed off by the Provincial HRA Director, Mr Luthuli.
e. It needs to be mentioned that in any event that a “Management Plan” is an administrative action plan to role out and have due dates to conclude numerous administrative actions by responsibility entities to conclude a bulletin’s process. The “Management Plan” does not form part of a bulletin or an advertisement for which prospective candidates can apply.
f. The Applicants both missed the closing date and are attempting to rely on the closing date of the second bulletin. The Union is relying on an administrative document “Management Plan“, already identified above.
g. The Applicants also appear to use as a defense the wording “Addendum“ to justify the two bulletins as being one – the Bulletin 5/2018 as an extension to Addendum Bulletin 5/2018. The argument holds no water as each bulletin is a separate entity with a complete set of instructions to prospective candidates (inclusive of the date of the bulletin, the closing date, information to candidates and at paragraph G - NO LATE APPLICATIONS WILL BE ACCEPTED, the 5 posts in NMB etc).
h. It needs to be recorded that nowhere in the Addendum Bulletin 5/2018 is an indication made that this bulletin rectifies or nullifies or changes the closing date of the previous bulletin. It is important to mention that errors in bulletins are rectified by means of the issuing of an Erratum. (Insert included in the Respondent submission, but not used here).
i. By own admission the Applicants’ Union in an email (Bundle B page 22) indeed confirmed that “there was a Provincial Management plan for both the Original Bulletin as well as the Addendum on the Departmental website available and “based on that our members will have very little grounds to dispute the confusion on the closing date for the bulletin”.
j. Section 6 of the Employment of Educators Act read in conjunction with Chapter B.5 of PAM regulates the advertising and filling of educator posts. ELRC Collective Agreement 3 of 2016 is a Guideline for Promotion arbitrations. To further elaborate, Section 6 elaborates on the powers of the employer in the appointment, promotion or transfer process and alludes to the SGB having to submit in order of preference a list of names before the HOD can make an appointment. Sadly, the Applicants have not or could not reach this stage for obvious reasons. Items 31 to 36 as contained in Paragraph F of ELRC Collective Agreement 3 of 2016 speaks to the guidelines relating to unfair labour practice disputes concerning promotions. Sadly the measure speaks to applicants or candidates which the Applicants in this matter are not.
k. The question in law is whether the Applicants, who were never candidates by virtue of their applications not being accepted due to lateness, have an entitlement to refer a regulated promotion dispute in terms of Section 186 (2) of the LRA? The same question could be posed in respect of the interpretation aspect of the two bulletins. Regrettably our responses are no.
l. Finally, by virtue of the Applicants being late, their applications could not be accepted and, frankly put, their applications were never part of the application process/contestation for the promotion posts as advertised in the Bulletin wherein the posts were advertised. The provisions of Section 186 (2) (a) is not applicable. The relief the Applicants are seeking cannot be granted under the ambit they have chosen.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
17. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving - 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 provision of benefits to an employee.”
18. In the matter before the Council the Applicants are saying that the Bulletin 5/2018 and the Addendum Bulletin 5/2018 are one and the same thing, the closing date for all the positions in both Bulletins was 23 October 2019 and the Respondent by refusing to accept the Applicants’ application forms in time for the Addendum Bulletin’s closing date, has committed an unfair labour practice. The Respondent on the other hand is saying that the Bulletins were two completely separate Bulletins with their own closing dates.
19. It is common cause that both Bulletins have their own closing dates. It is common cause that the positions the Applicants applied for were not part of the Addendum Bulletin. It is further common cause that the Addendum Bulletin makes no mention of any changes in the closing date for the original Bulletin.
20. It has been admitted by the Respondent that the posts in the Addendum Bulletin were posts that somehow or other had not been included in the original Bulletin, however were supposed to be part of the original Bulletin.
21. It is trite that when corrections or additions need to be made to an advert or even a closing date changed, an Erratum is the means by which these amendments to the original advertisement are made.
22. In this instance the Respondent has not made use of an Erratum but an Addendum Bulletin so as to advertise the positions that had been “left out” and has in no way made any amendments to the original Bulletin, including the closing date.
23. If the positions the Applicants were applying for were mentioned or part of the Addendum Bulletin, then I believe their argument would hold water, however this is not the case. I find that it was not the intention of the drafter to combine the two Bulletins at all and intended the Bulletins to be dealt with separately, as the drafter would have added a clause to the Addendum Bulletin informing all possible candidates that the closing date of the original Bulletin had changed and is the same as the Addendum Bulletin.
24. The word addendum has a number of synonyms: addition, appendix and supplement are some of the examples. I find that in this instance that the drafter of the Addendum Bulletin’s intentions was more than likely to advertise the positions “left out” of the original Bulletin in this manner so that the positions “left out” could be included/added to the “advertisement run” for the lack of a better word. I however do not accept that it was the drafter’s intention to deal with all the positions as one Bulletin per se going forward.
25. This would also explain why there was no application form attached to the Addendum Bulletin, as it was expected of the applicants to use the original Bulletin’s application form, as the positions advertised in the Addendum Bulletin were part of the same “advertisement run”.
26. The fact that other districts have interpreted the situation differently is of concern, as being one employer, all employees should be dealt with in the same way. It needs to be noted though that each district has its own management structures and decision making powers, where guidance from Head Office has not been provided, as is the case in this matter. There is however an old saying “Two wrongs do not make a right” and if the other district offices have been prepared to provide such an indulgence, one cannot expect the Port Elizabeth district office to follow in their steps purely for the sake of consistency.
27. The Respondent in their submissions made much of the issue of Jurisdiction. This however has been dealt with by way of a Jurisdictional Ruling dated 5 March 2019 by Commissioner H Saayman and therefore I will not address this in these proceedings.
28. Taking into consideration all the above and on the balance of probability, it is my finding that the original Bulletin 5/2018 and the Addendum Bulletin 5/2018 are two separate documents with two different closing dates and by not complying with the closing date of the original Bulletin 5/2018, the Applicants have deprived themselves of any opportunity to compete for promotion. It is further my finding that the Respondent has not committed an Unfair Labour Practice by not accepting the Applicants’ application forms for promotion post.
29. I therefore make the following award:
30. The Applicants, R Billet – Persal number 21782890 and A Hart – Persal number 53210972, have failed to prove that the Respondent, Department of Education – Eastern Cape, committed an Unfair Labour Practice relating to promotion in terms of Section 186 (2) (a) of the LRA.
31. The Application is dismissed.
Panellist: Anthony Walter Howden