Case Number: PSES 552-18/19
Applicant: PB NGOBESE
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Durban Teachers Centre
Award Date: 23 September 2019
Arbitrator: Saber Ahmed Jazbhay
CASE NUMBER: PSES 552-18/19
DATE OF AWARD: 23RD September 2019
APPLICANT: PB NGOBESE
Represented by Advocate TC Khuzwayo
Telephone: 031 3010506
Applicant Mobile : 0721021506
Applicant’s email: email@example.com
RESPONDENT: DEPARTMENT OF EDUCATION (KWAZULU NATAL)
Represented by Mr JM Makhoe
DETAILS OF HEARING AND REPRESENTATION
1. The Arbitration proceedings ere over three separate days and were finalized on the 6th September 2019 under the auspices of the ELRC, at the Durban Teachers Centre
2. The Parties were required to submit, which they duly complied, after extension of time was granted closing arguments by no later than the 16th September 2019
3. Both parties were in attendance and were represented by their respective legal representatives. The matter was finalized on the 16th September 2019.
4. The primary issue in dispute was couched in terms of section 186(2)(a) of the LRA -Unfair Conduct. The proceedings were conducted in English and were digitally as well as manually recorded.
5. Both the Respondent and the Applicant, each submitted a bundle of documents as part of its evidence which I marked “A” and “B” respectively.
BACKGROUND TO THIS DISPUTE AND COMMON CAUSE ISSUES
6. This matter refers to an dispute pertaining to alleged unfair conduct in terms of section 186(2)(a) of the Labour Relations Act No 66 of 1995 as amended and pertains to promotion/ demotion/probation/training/benefits..
7. The undisputed facts are that
a. The Respondent, the Department of Education KZN, provides employment to educators.
b. The Applicant was
i. employed as an admin clerk in 1997 at the Khalipha Special School;
ii. And allegedly as a temporary educator from 2010 to the 31st August 2013 at the school where she taught computer skills to learners.
iii. On the 1st September 2013, she was appointed as a permanent teacher, level 1.
c. In 2017 as a result of a vacancy arising at the school , she applied for the post of deputy principal that was advertised in terms of HRM Circular No 39 of 2017,dated the 24th October 2017.( See Bundle A at B13 to 15)
d. The requirements for the post were that
i. The successful candidate had to have 5 years actual teaching experience (whereas, according to the Respondent, the Applicant had 4 years ,2 months and 21 days of actual teaching experience at the time)
ii. together with relevant qualifications.
e. It is also not in dispute that the Applicant obtained and possessed the following qualifications:
i. Advanced Certificate in Education in Professional Education Development
ii. National Professional Diploma in Education
iii. Certificate in Office Administration and Computer Literacy , as well as a
iv. Senior Certificate .
f. She was invited to an interview on the 6th February 2018 and she was the successful candidate following the due process that ensued. In terms of a letter dated 28th March 2018 she was appointed at the Khalipha Special School, effective 1st May 2018.
g. Also not undisputed is the fact that despite her purported appointment , she continued to receive her salary as an educator and not as a Deputy Principal.
h. On the 18th August 2018 , the Principal and the SGB were informed that, as the didn’t meet ‘the experiential requirements of the Deputy Principalship (sic) Post No 121”, the Head of Department had withdrawn her appointment.
i. Aggrieved by the foregoing, she lodged a dispute on the 6th September 2018
The parties were invited to make opening statements. For the sake of brevity, what follows is a summary and not a verbatim account thereof
The foregoing, I must add, ensued after the opening statements that both parties had made and the process of narrowing the issues that I had to decide.
8. The Applicant will testify that she was invited for an interview and that she had met the selection criteria as well as requirements for the post, and having being found as a suitable candidate, on the recommendation of the interviewing committee, the Respondent’s Head of Department duly appointed her. She will also produce a witness to support her case.
9. Applicant seeks for the appointment and placement to be confirmed .
10. The essence of the Response’s defence is that the Applicant hadn’t been forthcoming in her application in that
a. her actual teaching experience was four years, two months and 21 days and that
b. consequently the HOD who , in the purported letter of placement qualified it with the caveat that the Respondent reserved the right to withdraw her placement in the event it found that she hadn’t , inter alia, met “the requirements for the post and her application was based on incorrect information.
11. It will produce two witnesses who will testify and prove that the Applicant hadn’t met the qualifying requirements for the post and that exercising its prerogative it withdrew her appointment and placement.
ISSUE TO BE DECIDED
12. I must decide whether the Applicant has been subjected an unfair act or omission on the part of the Respondent involving unfair conduct by the Respondent relating to the promotion of the Applicant.
13. Should I find in favour of the Applicant then I am required to consider what remedy would be appropriate.
14. Should I find against the Applicant, then the matter would be dismissed and the Applicant would not be entitled to relief.
SUMMARY OF THE EVIDENCE AND ARGUMENT
15. Section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), requires me to issue an award with “brief” reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing.
16. It is trite however that reference to “brief reasons” doesn’t mean that I must not consider all relevant evidence adduced during this arbitration and not to record them. I am supported by persuasive case law on this point.
17. Furthermore, given the number of witnesses (four in all who testified and reference to the documents used and referred to in these proceedings) and the seriousness of the dispute before me, it is imperative that this award be in line with the principle enunciated by the Labour Court in Country Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Another,  ZALC 182 (19.8.1999) to the effect that as an arbitrator I am obliged to apply my mind to all the facts. As Zondo, then JP, reminds is another case, albeit in the LAC judgment in Naepe v Commission for Conciliation, Mediation and Arbitration,  ZALAC 2 ( 18 April 2008), that although a commissioner is expected to give “brief reasons” he or she is expected to take into account all the facts and factors which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide.
18. It is my respectful understanding that I must make mention as to what these facts are and what are the factors that inform my finding as recorded in this award.
Applicant’s case : Primrose Bongiwe Ngobese
19. As most of the essential facts surrounding this dispute are undisputed, and common cause, in essence the Applicant testified that she, being a grade 1 educator, had applied for appointment into the post of a Deputy Principle at the Khalipha Special School.
20. She had been shortlisted, interviewed and assessed by the SGB as the highest scoring candidate.
21. The selection panel recommended her. However the HOD did not appoint her. This was for the following reasons
a. her actual teaching experience was four years, two months and 21 days and that
b. after a verification process had been taken, there were certain shortcomings in her application.
c. Consequently the HOD withdrew her placement on the ground that she hadn’t , inter alia, met “the requirements for the post and her application was based on incorrect information.
There appears to be no factual dispute of any material nature. The critical issue to be decided is whether the Applicant had met the qualifying criteria and that therefore she was the most suitable candidate for the, now withdrawn post of Deputy Principal, and that her appointment as well as placement should be confirmed. .
22. She testified that even though she had received a letter of placement, it was common cause that it was subject to a verification process. Hence that letter of placement contained a caveat that it was subject to , what later emerged in evidence a verification process.
23. On her own version, although she had received that letter of placement , incidentally at the same school where she had commenced employment and is currently employed, first as an admin clerk and later as an educator,, she continued her normal duties as an educator and her salary remained the same as that of a level 1 educator. She also testified that she never questioned or queried that with the Respondent.
Did she meet the qualifying criteria pertaining to experience?
It is apposite that I consider the evidence as presented during her testimony for its relevant to my finding and determination.
24. Critically, because the Respondent put her qualifications in issue , as she bore the onus, she testified that
a. she had the requisite “actual” teaching experience in that when she was still as an administration clerk, she used to,
b. at the behest of the principal who allegedly obtained the necessary consent of the circuit inspector teach classes, in between her duties as an admin clerk, in computer skills especially whenever an educator was absent and also when there was a large enrolment and it became necessary to split classes.
25. Due to budgetary constraints of employing an additional educator, pragmatism dictated that he doubles her as an educator. She was still remunerated as an admin clerk.
26. She also mentioned that the ward manager a Mr Shozi seems to have sanctioned her doubling as an educator.
27. When she was appointed as a temporary educator between 2010 and 31st August 2013 she taught classes which she continued upon her appointment as a permanent educator from the 1st September 2013 till the point in time when she had applied for the post and beyond.
28. Thus, it was strongly argued that, she had the requisite five years actual teaching experience as at October 2017 . It was based on her understanding and belief that she had the qualifying requirements that she submitted the information and details in her application for the post .
Under cross examination
29. She was challenged vis-à-vis the foregoing and subjected to vigorous cross examination. Her contention was seriously disputed.
30. She conceded, albeit reluctantly when it was put to her, that if she was an educator during the admin clerk phase of her career that
a. Had she been an educator she would have had certain addition duties apart from teaching and that
b. Actually she was a ‘relief person” and that
c. She would have been remunerated as an educator.
d. And that as an educator she would be compelled to submit to a process referred to as IQMS.
31. The fact that she was shortlisted and interviewed and that ultimately she passed muster supported her contention that she was suitable candidate and that her appointment and placement at Deputy Principal at Khalipha Special School should be confirmed.
32. It needs to be mentioned that during cross examination she hadn’t, and neither did her counsel for that matter, disputed the Respondent’s contention that it did not recognize experiences of temporary educators or that of admin clerks. Neither had the Applicant or her counsel an answer to annexure B1 against the contention of the Respondent refuting her allegation that she was an educator as at 31st August 2013. She grudgingly conceded that she wasn’t an educator as at that date.
Two other witnesses testified at her behest. They were:
Thandiwe Jeanette Mlinda
She testified that ,she was a master educator at the Khalipha Special School and she confirmed that between 2010 to 2013 the Applicant would double up as an educator apart from her appointed position as an admin clerk at the school.
She was employed as Human Resources Specialist with thirty years’ experience under her belt. Her duties included overseeing the management of processing appointments, promotions, qualifications of educators and public servants and she was eminently qualified in her field..
33. She provided a detail explanation from the time a post becomes vacant to the time when it is filled. Her testimony was invaluable. She testified as follows that
a. After the closing date for applications to be submitted in response to an advertised vacant post, documents are then forwarded to the circuit offices where a short listing process takes place.
b. Once that is done the documents of the shortlisted candidates are forwarded the school where the vacancy arose and an interviewing committed is appointed and once that process is completed a EHR11 form is completed containing the name of all the candidates, their identity numbers , their persel details and their scores. It then goes to the HOD for approval. Thereafter a letter of placement is sent.
34. It was her unchallenged evidence that according to the records on file the Applicant, at the relevant time,
a. Was a admin clerk and that as such she did not have any teaching duties
b. The fact that she may have taught classes the behest of the principal was regarded as voluntary service and not teaching experience.
c. She stated that volunteer service providers were not regarded as educators for the purposes of computing actual teaching experience and farther that they were never remunerated for that.
d. The Applicant’s actual teaching experience was computed as 4 years, 2 months and 21 days.
e. Actual teaching experience was interpreted as providing teaching for 7 hours a day.
f. All educators were compelled to complete an Integrated Quality Management System (IQMS) assessment/evaluation which she didn’t at any time and as she hadn’t completed the IQMS process she couldn’t be regarded as an educator. Whatever duties she performed was in the capacity as a public servant and not as an educator.
g. The Applicant had not met the qualifying requirement contingent for the appointment for the post as Deputy Principal.
35. Under cross examination she testified that there would be times where shortlisting and interviewing committees would labour under an erroneous understanding of the qualifying requirements and that was why the letter of placement mentioned what was referred to in para 4 of the letter of placement dated 28th March 2018 It is probable that this was realized at the level of the HOD and hence the letter withdrawing her appointment .
Witness: Kwazi Mchunu
1. He was the chief personnel officer in the service of the Respondent.
2. Like the witness Shobna Budhai he provided a detailed exegesis on the process involved when it came to the final leg and that was confirming appointment.
3. It was his testimony that during the process of expediting the appointment of an educator they would normally check, and recheck the authenticity as well as correctness of information and documents submitted by successful applicants for vacant positions.
4. It was at that time when they realized that the Applicant hadn’t met the qualifying criteria for the post of Deputy Principal, namely 5 years of actual teaching experience and therefore she was disqualified.
5. He testified that if the Applicant was an educator as opposed to a public servant she would have had to be registered with SACE and this she did on the 3rd November 2014 and that therefore the 5 years qualifying experience wasn’t complied with.
6. A letter of placement, he explained, was different from a letter of appointment. The former indicated that the Applicant had successfully passed muster of an, albeit, flawed process and that it was contingent upon verification of details and information referred to therein. Only when a final audit was done was the appointment final and binding and if there were issues a letter, which is what happened in this case, would follow.
7. During cross examination, just as the witness Shobna Budhai had done, Mr Mchunu painstakingly led us through the process from the time a vacant position exists and the verification process involved which culminated in the appointment of successful candidates. He reiterated his evidence that the Applicant hadn’t met the qualifying requirement and that led to the withdrawal of her placement and appointment as Deputy Principal at Khalipha Special School in Kwa Mashu.
What is contained herein is a summary of my understanding of each party’s address highlighting their respective versions in order to persuade me which version was preferable as probable.
The Respondent argued that there is no evidence that sometimes in 2010 here was a vacancy that needed to be filled and that during that period up till 2013 she doubled as an educator at the behest of the school principal or that the circuit officer and ward manager whom she named were aware of this. None of these critical witnesses were called in to testify. It contended that the allegations were, at best, a fabrication.
It pointed out that the version of the Respondent was more probable and credible as it was supported by its Chief Personnel Officer as well as by the HR person Shobna Budhai . Their testimony consecutively considered was more cogent and clearly supported the version of the Respondent.
In its final submission it forcefully argued that the Applicant failed to discharge the onus incumbent upon her and that she wasn’t entitled to the relief she sought.
It was argued that I had to look at the Applicant’s work experience . It was further argued that the selection panel had on the basis of the Applicant’s work experience considered the Applicant as the suitable candidate and had scored her accordingly. It is my understanding that it is the Applicant’s argument that work experience overrides the contingent requirement of actual teaching experience. Accordingly the Respondent had committed an unfair labour practice which was so egregious that the Applicant is entitled to the relief she seeks
1. Much of the evidence tendered during this arbitration was common cause.The matter is referred as an unfair conduct- promotion/demotion/probation/training/benefits in terms of section 186(2)(a) of the Labour Relations Act No 66 of 1995.. The evidence submitted and the arguments do make out and support a prima facie case of unfair labour practice related to promotion. Before I continue further it is apposite that I consider whether the Applicant was “appointed to the post
Was the Applicant appointed to the post?
2. Its trite that
a. vacant educator posts are advertised in terms of the Employment of Educators’ Act (EEA) and Personnel Administration Measures (PAM).
b. Sections 6(3) and 7(1) of the EEA contain the fundamental prescriptions, both to the Governing Body and to the HOD as to how the selection and appointment procedures are to be conducted.
c. Chapter B, par. 3.3 of the PAM prescribes the processes for the advertising and filling of educator posts.
d. The HOD, District Directors and other senior officials at the Department should be well acquainted with the statutory provisions contained in Section 6 of the EEA, as well as the PAM.
3. It was undisputed that the SGB, under the supervision of the departmental representative (School Management and Government Development fully complied with the prescribed criteria and procedures. No evidence exists that they violated any of the relevant prescriptions.
4. The requirements for appointment are contained in PAM, Chapter B, par. 2 under the heading “Appointment in Education”. Refer to par. 2.2 which regulates the minimum requirements for appointment as an educator (par. 2.2(a)).
5. The minimum requirements for appointment to a post of Deputy Principal (Post Level 3) (par. 2.2(b)(ii)) are as follows:
• PAM, Chapter B, par. 2.2(a)(i): In order to qualify for appointment as an educator a person must have at least a recognized three year qualification (REQV 13) which must include appropriate training as an educator.
• PAM, Chapter B, par. 2.2(b)(ii): The minimum requirements in respect of experience for appointment to promotion posts are: Post Level 3 (Deputy Principal) = 5 years
6. The Applicant hadn’t met these requirements and was accordingly ineligible for appointment to a post of Deputy Principal. O f Khalipa Special School. There is no evidence that she had actual teaching experience for a period of 5 years.
7. Two letters are critical here. The first relates to the letter of placement . On a plain reading of that letter of placement it she is informed that states that she is provisionally placed, not appointed to the Khalipha Special School in Kwa Mashu with a caveat . The evidence that Shobna Budhai and Kwazi Mchunu indicate that after the verification process a formal letter of appointment is then sent out to the school as well as to the Applicant. Ranged against that is an equally clearly worded letter which refers to “withdrawal of the appointment for the Deputy Principalship Post….” from the Respondent dated 24th August 2018 addressed to the principle as well as the SGB, the contents being self-explanatory.. It was not addressed to her personally. Only in the case of a letter confirming her appointment and an acceptance of that appointment by her can we say that there was an appointment. In my opinion there was no appointment and therefore there was no withdrawal.
8. In general, an employer has the right to appoint or promote employees whom it considers the best or most suitable. I am therefore reluctant to interfere with the Respondent’s decision in the absence of unfairness.
9. In Van Rensburg v Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA) it was held that interference in the employer’s decision is justified only where its conduct is “so grossly unreasonable as to warrant an interference that they failed to apply their mind”. ( at 1426F)
Unfair Labour Practice?
10. An unfair labour practice means ‘any unfair act or omission “ vis-à-vis employer and employee relationship which involves “unfair conduct’ relating to promotion/demotion/probation/training/benefits. The case that the Applicant seeks to make fits in none of the subsections of section 186(2)(a). Quite astutely, the Applicant doesn’t argue or to pigeonhole her case and as my task as an arbitrator is not to accept the labels attached by the parties but rather to determine the true nature of the dispute. As John Grogan states much on the manner in which the Applicant casts the dispute. She does say that the conduct of the Respondent was unfair.
Was the conduct of the Respondent unfair?
11. Evidence submitted on behalf of the First Respondent was that the interviewing panel erred in recommending the Applicant because she did not satisfy a condition set out in the criteria. The Applicant was a level one educator and was recommended for a level three Deputy Principal post.
12. The Applicant did not satisfy the criteria that she should be Deputy Principal. In addition the position she applied for was a managerial position.She did not provide any evidence that she had managerial experience.
13. The decision to promote or not to promote falls within the managerial prerogative of the Respondent as employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion.
14. The role of the Commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted.
15. Based on the evidence tendered by the parties and supported by closing arguments and supplemented by documents handed in as evidence, I could find no support to gainsay the Applicant’s version.
16. Criticism can certainly be levelled against the manner in which the Respondent dealt with the matter. At the very least one would have expected the Department to have informed the Applicant of its decision to withdraw the “appointment. I feel compelled to expand on this.
17. Granted that the Respondent may have acted unfairly but that , in my view, is not enough to sway the outcome in her favour, when it unilaterally withdrew the “appointment” and the “ placement” of the Applicant. There was no capriciousness, arbitrariness or mala fides on its part. It woefully lacked the human factor and it could have approached the matter in a more humane way. For instance ,it could have chosen to move away from its cold and clinical approach of blithely informing the Applicant that it has withdrawn the appointment and placement with a letter in which it should have stated that based on incorrect information submitted by the Applicant , and that the Respondent intends to withdraw the “placement” and appointment”” , adding that before it does that it could have offered the Applicant an opportunity to respond and to remedy the defective or incorrect information submitted by the Applicant. This is more in keeping with ensuring a strict observation of the Applicant’s right to the principle of audi alteram partem as well as the fair administrative action. This is an ongoing employment relationship between the Applicant and the Respondent and the foregoing right as well as the right to fair labour practice would have found a more human face. The approach was clearly wrong.
18. On the substantive issue, I find that the Applicant failed to make out a strong case to persuade me that the probabilities favoured her version and that she should be entitled to the relief she seeks. There were many imponderables. I noticed that on her own version as supported by her letter of resignation for instance that she wasn’t an educator as defined but a public servant. I also found it hard to wrap my mind around the argument that she taught for the periods she alleged she did as an educator in the absence of the testimony of the principal, someone from the circuit office and the ward manager who allegedly were aware that she doubled up as an educator and that the latter had sanctioned that transition. Her counsel’s argument in her closing statement that work experience trumped actual teaching experience was specious and untenable. She did not present even any shred of tangible evidence or argument.
19. The Respondent’s witnesses proved to be persuasive and their combined evidence as seasoned professionals pointed in favour of the probabilities supportive of its version. I could find support for the subliminal inference that the letter of placement had created an expectation especially when I have to weigh that against the fact that her ‘appointment was effective from the 1st May 2018 and yet as at August 2018 her salary hadn’t been adjusted to that of a Deputy Principal. What I found odd was that she didn’t query that.
20. In the light of the totality of evidence and arguments considered I find in favour of the Respondent and that the Applicant isn’t entitled to the relief she seeks.
A. The Respondent has not committed an unfair labour practice relating to promotion.
B. Applicant is not entitled to the relief she seeks
C. There is no order as to costs.
Dated at Durban on this the 23rd September 2019
Saber Ahmed Jazbhay