Case Number: PSES351-18/19 EC
Province: Eastern Cape
Applicant: SADTU obo FIKILE FELIX JOZI
Respondent: 1st Respondent Department of Education Eastern Cape, 2nd Respondent KHUTALA TAFA
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Umtata District offices in Umtata
Award Date: 30 May 2019
Arbitrator: Malusi Mbuli
Case Number: PSES351-18/19 EC
Panelists: Malusi Mbuli
Date of Award: 30-05-2019
In the ARBITRATION between
SADTU obo FIKILE FELIX JOZI
DEPARTMENT OF EDUCATION (EASTERN CAPE)
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 as amended.
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 as amended.
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 Umtata District offices in Umtata on the 09th April 2019 and the 22nd of May 2019 before Commissioner M. Mbuli.
2. The applicant Mr. Fikile Felix Jozi attended the hearing and was represented by Mr. A. Tyantsi a shop steward of the applicant’s trade union SADTU.
3. The respondent Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. V. Liphapang, an official of the respondent. The 2nd respondent Mrs. Khuthala Tafa was also present at the hearing and was represented by Mr. K. S. Dalasile an official of the applicant’s trade union NAPTOSA.
4. The matter was finalized on the 22nd of May 2019 and the parties agreed to file their closing arguments on or before the 29th of May 2019 and all the parties delivered their closing arguments.
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 a Deputy Principal – History, Geography and Xhosa at Ngwayibanjwa Senior Secondary School in the Umtata District of the respondent. The applicant was shortlisted, interviewed for the said position but was not appointed to the post.
7. Five candidates were recommended to the respondent in terms of section 6 of the Employment of Educators Act including the 2nd respondent and the applicant. It is in dispute however whether the Governing Body recommended the 2nd respondent for appointment to the said position to the Department of Education – Eastern Cape.
8. The Department of Education, the respondent appointed the 2nd respondent Mr. Kuthala Tafa who is now occupying the position. 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.
9. The applicant also feel that he is a better candidate for the job and stood a chance to be appointed if the SGB had not short listed the 2nd respondent who does not meet the minimum requirements of the job. The applicant states that the 2nd respondents application should have been disqualified because she did not meet the minimum requirements because she did not possess all the 3 subjects required as opposed to the applicant who has all the 3 subjects.
10. The issue in dispute in particular is whether the short listing and subsequent appointment of the 2nd respondent was procedurally unfair and amounted to an unfair labour practice as contemplated by section 186 (2) (a) of the Labour Relations Act as amended.
11. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the interviewing panel. The parties agree that the decision or power to recommend a candidate to the department rest with the SGB and that the decision to appoint rest 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 22nd of May 2019.
SURVEY OF EVIDENCE
13. Summary of the evidence of the applicant.
The applicant, Mr. F. F. Jozi testified that he applied for the position of a Deputy Principal at Ngwayibanjwa Senior Secondary School in the Umtata District of the respondent. He was an Educator and HOD for the respondent for a period of 10 years, is the member of the SMT and also assisting the Principal in performing his management duties.
He confirmed that the secretary of the School Governing Body was present at a meeting where the post was profile and that there was no objection to the 2nd respondent being shortlisted to be interviewed for the said position. He stated that he was happy with the way the post was profiled even though he was not present when it was profiled.
He testified that the post is profiled by the SMT and that recommendation is referred to the School Governing Body for approval. He stated that the post required 3 subjects History, Geography and Isi Xhosa which he possess and that the 2nd respondent only had Geography and Isi Xhosa. He averred that the three subjects have to be teaching subjects.
He testified that after the interviews the staff members were called to a meeting by the principal who announced in that meeting at the Resource Centre that the 2nd respondent was appointed to the said position of the Deputy Principal.
He stated that there was no ratification meeting by the SGB after the interviews were conducted and that the 2nd respondent was just announced as the appointed candidates. She stated that the 2nd respondent did not meet the minimum requirements of the post because she had 2 subjects and when he complained about her appointment he was ignored and there was no response.
He testified that he was told by Miss. Dubula, Nzenze and Khutala Banyoni that there was no SGB ratification meeting before the recommendation was sent to the respondent and that they were made to sign the minutes of the so called ratification meeting outside a meeting situation. He further stated that he was at school on the 13th of March 2018 when the alleged meeting took place and that there was no SGB meeting that was held on that day.
The applicant’s 2nd witness was Miss. Khutala Banyothi who testified that at the time of the advert he was working for the respondent at Ngwayibanjwa Senior Secondary School. She averred that on the 12th of March 2018 there were interviews that were held at the school for the position of the Deputy Principal.
She was invited to the meeting of the 13th of March 2018 by sms but there was no meeting of the SGB that was held on the 13th of March 2018. She stated that she was called by the Principal who stated that they must sign the attendance register because he would like to take that register and documents to the department. She stated that she signed the minutes because she respected the Principal.
She testified that Mr. Jozi was not part of the meetings of the SGB that profiled and dealt with the processes of appointment to the post because he was a candidate and therefore he had an interest in the appointment. She stated that she is not familiar with the processes of appointment and admitted that she was careless when she signed the attendance register when she had not attended the meeting.
She stated that there was no ratification of the SGB and that she never called Mr. Jozi complaining about signature.
The applicant’s representative then closed their case and the respondent’s representative opened their case by calling their 1st witness Miss. Lindeni Siphokazi Ndinga who testified as follows:
- That she works for the respondent as an educator, also part of the SGB at Ngwayibanjwa Senior Secondary School. She averred that she was part of the short listing for the position of the Deputy Principal in question and it was not for the first time playing this role.
- She testified that the position in question was profiled as Deputy Principal – Geography, History and Isi Xhosa as the 3 subjects that were required for the post. The post was advertised for the 2nd time because in the 1st advertisement there was only one candidate who applied and a decision was taken to re – advertise the post.
- When they were short listing in the 2nd round again there was one person who had all the 3 teaching subjects (the applicant) and they had to look for 5 candidates to be interviewed in terms of the Employment of Educators Act.
- She stated that the short listing panel was given power by the SGB to set up a criteria and shortlist the suitable candidates for the position. The criteria that was set was based on qualifications, experience, management and management experience. When they did the short listing they discovered that most of the candidates had 2 subjects not 3 and the short listing panel took a decision to consider other candidates with 2 subjects.
- She testified that the interests of the school and learners were taken into account because the school had not had the Deputy Principal for a long time and the curriculum which he / she would be responsible for was suffering. If the post was re – advertised again it was going to defeat the purpose because it was again going to take too long to fill in the position.
- She averred that the applicant and the 2nd respondent were both shortlisted and on the 12th of March 2018 the interviews were held where the interviewing panel recommended the 2nd respondent as no 1 candidate and the applicant the no 2 candidate.
- After the interviews were held the panel then met the SGB and the SGB was satisfied with the recommendation of the panel and accepted it on the 13th of March 2018. She stated that the word accepted used in the minutes of the SGB meeting of the 13th March 2018 contextually meant that the SGB was recommending the 2nd respondent for appointment for the position of the Deputy Principal.
- She confirmed that there was an SGB meeting on the 13th of March 2018, attended by 9 people including the applicants witness Mrs. Khuthala Banyothi. She referred the hearing to the attendance register that also reflected that also the Principal and Mrs. Khutala Banyothi were present in the said meeting.
- She averred that the date of 12th March 2018 appearing on the recommendation document was a mistake and that the matter was referred to the SGB for recommendation and the SGB did recommend the 2nd respondent for the position in question.
- She averred that the applicant had all the 3 subjects but there were other attributes that were considered after they had adopted a criteria to also short list those candidates with 2 subjects. She stated that the criteria for shot listing was adopted because there was no other chance of getting 5 candidates with all the subjects and it was urgent to fill in the said position because the absence of the Deputy Principal could also affect the results of the school.
The respondent’s representative then called their 2nd and last witness Mr. Bantubathi Abrahams Retyu who gave evidence to the effect that:
- He stated that he is the Principal at the school in question, Ngwayibanjwa Senior Secondary School and he knows the applicant Mr. F.F. Jozi. He testified that he and the applicant have a good relationship together. He averred that he was a resource person in the shot listing and interviews for the recruitment of the position of the Deputy Principal in question.
- He stated that the post was profiled by the SMT and the post initially required 3 teaching subjects and this was changed by the short listing panel because at short listing there was only one candidate who had the three subjects and that was the applicant. He confirmed that the criteria of the panel were based on the requirements of qualifications, experience, management and management experience. He stated that the needs of the school were taken into account when the criteria were changed.
- He testified that the post was advertised for the 2nd time and on the first occasion only one applicant applied which led to the re – advertisement of the post. There was a need to fill in the position urgently because it had been vacant for a long time and that the school was suffering because of the absence of the Deputy Principal.
- He confirmed the minutes and attendance register of the 13th of March 2018 for the ratification meeting of the SGB and stated that the SGB accepted the panel recommendation and in that way recommended the 2nd respondent for appointment to the position of the Deputy Principal in question.
- He stated that there were 9 SGB members who were present in this meeting appearing also on the attendance register and that Mrs. Banyothi was also part of the ratification meeting. He disputed that he called Mrs. Banyothi to sign the minutes of the meeting at a later stage.
- He confirmed that the panel was trained on how to conduct the short listing and that the criteria to be used at short listing were discussed and agreed upon by the shot listing panel. He testified that this was within their discretion to do so.
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 shortlist the applicant.
16. Both the applicant and the 2nd respondent were shortlisted to the position in question and were also interviewed. The respondent appointed the 2nd respondent to the position of the Deputy Principal and was recommended as the no 1 candidate by the panel of interviews.
17. As indicated above, the applicant contests both the procedural and substantive fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant feel that the 2nd respondent should not have been short listed because she did not have the 3 subjects required by the advert and that the applicant had all the three subjects required.
18. In this regard the employer led evidence of 2 witnesses Miss Lindeni Ndinga and Mr. B. A. Retyu who gave corroborative and clear evidence to the effect that the SGB had given the short listing panel powers and discretion to come up with the 5 candidates to be interviewed. That the post was advertised for the second time because there was only one candidate with all the 3 subjects.
19. For this reason the position had to be re – advertised and in the second short listing process again there was only one candidate (the applicant) with all the 3 subjects. The short listing panel then discussed the matter exercised its discretion to include the other candidates with two subjects without neglecting the needs of the school.
20. These candidates were then accommodated and after they had been accommodated they became eligible for appointment as the applicant who had all the three subjects. The witnesses testified that the Deputy Principal is responsible for curriculum and it was in the best interest of the school and learners that the Deputy Principal be appointed and for that reason the school could not wait any longer.
21. The question here is whether the discretion of the short listing panel given by the SGB was reasonable and justifiable applied exercised. The evidence led by these two employer witnesses show that it was difficult for the respondent to attract candidates with all the 3 subjects and that they have tried to advertise the position previously but could not get the 5 candidates to be interviewed.
22. It was in the interest of the school and the learners that the position of the Deputy Principal be filled as the Deputy Principal has an important role which is that of being responsible for curriculum. The discretion given by the SGB to the short listing panel was exercised fairly, reasonable and justifiable. The applicant also argue that the SGB did not hold a ratification meeting before the 2nd respondent and other candidates were recommended for appointment by the department. The applicant’s witness Mrs. Khutala Banyothi testified that the SGB ratification meeting was not convened.
23. She confirmed that that she signed the attendance register dated the 13th of March 2018 which was the attendance register allegedly signed to confirm attendance to that meeting. She states that she was not part of that meeting but was called by the Principal who said that she must sign because they want to send documents to the Department of Education. She could not give a satisfactory explanation of why she would sign an attendance register for the meeting she did not attend.
24. On the other hand the employer witnesses gage clear, coherent and corroborative evidence to the effect that the ratification meeting was held and attended by the 9 SGB members who are appearing on the attendance register including Mrs. Banyothi. The Principal Mr. Retyu disputed that he called the applicants witness Mrs. Banyothi and asked her to sign the register outside the meeting.
25. It is also interesting to note that the signature of Mrs. Banyothi appears in the middle of other signatures and this does not suggest that she was approached alone later. The evidence and version of the applicant that there was no ratification meeting is hereby rejected as unfounded and without any credible basis.
26. The recommendation of the appointment of the 2nd respondent was made in the ratification meeting and the words (accepted) in the minutes of the SGB meeting of the 13th of March 2018 confirm that the SGB accepted the report by the interviewing panel recommended the 2nd respondent as the no 1 candidate.
27. On the substantive issue the applicant submits that the 2nd respondent did not meet the minimum requirements of the post because she did not have 3 subjects required by the advert. This takes me to the argument advanced above that it was within the power of the SGB to decide on the criteria and this was delegated to the short listing panel appointed by the SGB.
28. The SGB short listing panel took into account a number of factors, i.e. the fact that they could not find other candidates with 3 subjects to compete with the applicant and that there was urgency in filling in the position of the Deputy Principal.
29. I have already found that this discretion was applied fairly and reasonable and if this is the case the all the 5 candidates interviewed became eligible for appointment to the position in question. The criteria are set by the SGB because the power to recommend appointment rests with them and this power has to be respected because there is reason for its existence.
30. In this dispute I have no reason to disbelieve the corroborated evidence of the employer witnesses and prefer that of the applicant and his witness. The 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. 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 above.
31. The 2nd respondent was recommended by the SGB as a no 1 candidate and the respondent has to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.
32. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable 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.
33. 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.
34. 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 bias manner.
35. 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.
36. If one looks at how the discretion was applied by the respondent in this case it is clear that the criteria lay down above decided by the SGB short listing panel was applied correctly and that the employer cannot be ordered to change their choice because there is no basis or authority for the applicants claim. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decisions above exist for her to challenge the application of the employer’s discretion.
37. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly. 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.
38. 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.
39. In the circumstances I make the for number PSES351-18/19 EC is dismissed, and the applicant is not entitled to any relief.
Commissioner: Malusi Mbuli