Case Number: PSES 832-18/19 KZN
Applicant: Veronika Slabbert
Respondent: 1st Respondent Department of Education KwaZulu-Natal and 2nd Respondent Jorge Goncalves
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: at Dokkies-KZN, Glenwood on 7 October 2019.
Award Date: 7 October 2019
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 832-18/19 KZN
Date of hearing: 7 October 2019
In the arbitration between:
Veronika Slabbert Applicant/Employee party
Department of Education – KZN First Respondent/Employer party
Jorge Goncalve Second Respondent/Joinder party
Tel: 072 498 2224
First Respondent’s representative: M Mtetwa
Tel: 031-360 6248
Second Respondent’s representative: B M Msomi
Tel: 031-360 6064
Fax: 086 543 4417
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held at the Durban Teachers Centre, College Road, Durban on 15 July 2019, 20 August 2019 and concluded at Dokkies-KZN, Glenwood on 7 October 2019.
2. The Applicant appeared in person.
3. The First Respondent was represented by M. Mtetwa, its representative.
4. The Second Respondent appeared in person on 20 August 2019, and was thereafter represented by B.M. Msomi, an Union Official, on 7 October 2019.
5. The parties requested to submit written submissions by 14 October 2019.
BACKGROUND TO THE DISPUTE AND SURVEY OF SUBMISSIONS:
6. The Applicant is an Educator at George Campbell School of Technology. She has taught there from 1 January 1994 to present, a period of more than twenty-five years. She is an Educator post level 1. If she had succeeded in obtaining the promotion in dispute, she would have been elevated to post level 2.
7. In terms of HRM 39 of 2017, post number 374 (Durban Central), George Campbell School of Technology advertised a post as pertaining to the Manufacturing, Engineering and Technology field. The post description was for Departmental Head.
8. The Applicant applied for the post, and was not short-listed. She then raised a grievance stating that the post was wrongly advertised. The Grievance Committee, on 23 October 2018, dismissed the grievance on the basis that all CVs were considered, and scored, and that the highest scored CVs were short-listed.
9. The Applicant’s dispute before the Council is that the post description does not match the subjects. Her forte is electrical. The heading of the post description refers to a combination of subjects, and her contention is that this includes electronics, and she was not short-listed. The Applicant alleged that she was not short-listed on the basis that the Committee considered only expertise in the mechanical field. The relief sought was that all applicants who qualify under this category be interviewed, and not only mechanical Educators, or alternatively the Department makes the Applicant the Head of Department of the Electrical Department, as stated in her ELRC referral form E1.
10. The Second Respondent, who was joined to the proceedings, fully participated in the proceedings. He was appointed to the post.
11. The First Respondent, later supported by the Second Respondent, raised a point in limine that the Applicant was contesting that the position, i.e. the wording, therefore was incorrect when it was advertised and could, or should, be interpreted as pertaining to Educators in the electrical field as well.
12. The First Respondent alleged that the advertising of the post is an administrative function, and the ELRC does not have jurisdiction pertaining thereto. The advertising of the post is the prerogative of the Department, and this was done after the input of the school, through the District Director.
13. The school determines what post they need after consultation with all the stakeholders. The First Respondent argued that the Applicant can never say that the post is wrongly advertised just because the criteria set did not favour the Applicant. The Applicant applied for the post. She realised she was not short-listed, however she raised a grievance saying that the post was wrongly advertised, however she did apply for the post. She should have communicated this before applying for the post.
14. I decided to hear all the evidence herein, as a totality, before proceeding to decide on the point in limine.
15. The First Respondent said that there were guidelines set out, and the criteria were also laid out. The Interview Committee looked at the curricular needs of the school, and decided they wanted a person who had automotive, welding, and metal work experience. They were allowed to do that.
16. The Second Respondent stated that manufacturing means building things, and the term “civil” does not pertain to manufacturing. In the electrical department all electrical components are manufactured by machines, which are designed by the mechanical engineering people.
17. The Applicant further stated that her whole case arose from what was said at the grievance hearing. She was alluding to what she alleged the Principal, Mr Ingle, had stated. She felt that the civil and electrical Educators were unjustly excluded.
ISSUE TO BE DECIDED:
18. Whether the Applicant was subjected to an unfair labour practice in terms of Section 186(2)(a) relating to promotion?
APPLICANT’S EVIDENCE AND ARGUMENT:
19. The Applicant confirmed that she applied for the post, and that the post referred to manufacturing, engineering and technology. She stated that she was not short-listed, and therefore submitted a grievance.
20. At the grievance hearing it was stated that manufacturing, engineering and technology refer to mechanical subjects only. She disputes this, as her forte is electrical, and she is of the view that she fits into the category. She says she has been in charge of technology at the school for over seventeen years. The heading was technology, and for her not to be short-listed is unfair.
21. She further stated that she had seen the scores of the four short-listed candidates, and felt she was unfairly scored, as she was more highly qualified than two of the short-listed candidates, and her expertise was even sought on the broadcasting level, and she had also served the community as well.
22. It would seem that she felt that the resource person was not well disposed towards her. In fact she stated that Mr Ingle had a toxic relationship with her. Further she stated that Mr Ingle had given a reference letter to one candidate, and was used as a reference by another candidate.
23. She even teaches at other schools because of her knowledge, and corrects people who make mistakes.
24. The second witness was Thembinkosi Cedric Madikane. He is a highly qualified professional Engineer, and holds several leadership positions in the field of electrical engineering. Further he has accredited Universities on behalf of the Electrical Council of South Africa.
25. In his experience, manufacturing, engineering and technology cannot just be mechanical. Mechanical Engineers and Electrical Engineers work together, and the disciplines cannot be separated.
26. He has never worked for the government directly, nor sat as a Governing Body member, and is not one hundred percent familiar with the recruitment and selection processes of the Department of Education.
27. He then went on to talk about recruitment in a private sector. He said that the criteria for selection everywhere must be fair, transparent, and reasonable. He felt that the criteria set by the Interview Committee were not altogether fair. The criteria set by the Interview Committee were:
“1. The best person for the job.
2. The candidate MUST have experience in the Manufacturing, Engineering and Technology area.
3. Namely experience in one or more of the following: Automotive Engineering, Welding and Metal Work and Fitting and Machining.”
28. He also talked about weighting the different responses to the criteria. The criteria must be clear upfront so that it can be said a person is from electrical background, but the weight for mechanical is higher. In that case the chances of an electrical person getting the job are small.
29. For himself, manufacturing is clear. It is not mechanical only, and it is not electrical only. It covers all the disciplines. He cannot turn around and exclude other disciplines.
30. The third witness was Mr Noel Ingle, the Principal of the College. He made reference to the CAPS document with reference to mechanical technology. Mechanical technology has embedded in it automotive, fitting and machining, and welding and metal work.
31. There is a separate section for electrical technology in Section 2. It states that a learner in electrical technology may opt to become an Electrician, and work in the manufacturing industry with specific focus on maintenance and repairs of electrical installations and machinery.
32. The Interview Committee set out the criteria, which was previously set out in this award. Paragraph 3 referred to mechanical engineering.
33. He did read the CVs out, and did not notice that one of the candidates had a reference from him. All CVs were numbered and read out. As a Resource Person does not score, he had no influence on the outcome.
34. He was not part of the meeting for the subjects for the new curriculum. However for the original electrical technology curriculum he was part of the Writing Committee that did that.
35. He hardly spoke at the grievance hearing, and when someone asked him for an explanation he explained the three subjects.
36. He then outlined all the processes, which he said were done fairly.
37. The fourth witness for the Applicant was Ramesh Balgobind. He has been the Head of Department in the Technical Department, and currently is, and is also on the Senior Management Team. He was present at the grievance hearing, as he also had a grievance to be heard on the same day.
38. He stated that “the best person for the job” is not a criteria, as it is a subjective category. He said that a candidate could be short-listed for the post for either civil, mechanical or electrical technology. In his view, manufacturing and engineering technology refers to four subjects.
39. He then went on to state his dissatisfaction that he was left out of the decision. He felt that if management had discussed with him how to describe the post, it would have been correct in the advertisement.
40. He admitted that the CAPS document is the superior document, because it is issued by the Department of Education.
41. He has taught technology subjects for thirty-three years, and has studied electrical engineering as well.
42. He stated that the Principal is the accounting person at the school, and he seemed to question some of the practices at the school.
43. He stated that the Principal as the guiding person emphasised criteria 3, but that is not what manufacturing, engineering and technology refers to. It refers to all subjects in the technology field, namely civil, electrical, mechanical, EGD, and technology.
44. The Respondent opted not to present any evidence.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
45. The general rule is that he/she who alleges a fact must prove it on a balance of probabilities. In unfair labour disputes, such as the present case, the onus rests on the Applicants to prove the unfair practice. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair. The overall onus always rests on the employee to show the existence of an unfair labour practice.” The Applicant has to prove her case on a balance of probabilities.
46. It is common cause that the short-listing process was done on 1 August 2018. It is also common cause that the minutes were signed by the Resource Person, Chairperson, Interview Committee members, and the Secretary. Furthermore the scoring was done after a criteria was set by the Interview Committee. Thereafter four persons were identified suitable for the post, and suitable for an interview.
47. In her original grievance the Applicant stated that the post was incorrectly advertised, and should have been more specific if it was to be a mechanical post only. She had then went on to detail her misgivings about the Principal, and included personal issues. She then went on to list her personal qualifications, as well as alleged gender disparity in the selection process.
48. However it seems that after she attended the grievance process she now focused on the fact that Mr Ingle had allegedly stated that the post was for persons in the mechanical field only. It would seem that the Applicant is utilising various forms of complaint to have the decision set aside by the Interview Committee.
49. In the CAPS document, which appears to be common cause amongst the parties and it is a primary document, mechanical technology is specifically stated, and it states that mechanical technology focuses on concepts and principles in the mechanical (motor, mining, shipping, rail, power generation, etc) environment and on technological processes. The document further goes on to state what comprises the subjects, and further excludes certain categories. The document makes a distinction between mechanical technology and electrical technology.
50. The criteria specifies that the best person for the job must be selected, and this depends upon the Interview Committee. The second requisite was that the candidate must have experienced in the manufacturing, engineering and technology areas, and thirdly the criteria went on to restrict the categories from which the short-listing will be done, and the restriction was for mechanical engineering.
51. The needs of the school had to be taken into account, and as long as the criteria used was fair, non-discriminatory, and in keeping with the Constitution of the country, the criteria must be taken into account.
52. If any applicant dissatisfied can ask for the short-listing to be redone this could create disorder in this particular process, as anyone applying naturally feels they are suitable to be appointed. As long as the rules are adhered to, and there is no evidence of any wrong doing, the decision of the Interview Committee has to be respected.
53. Various experts can have different views, as is common place in deferring fields, however as stated it is the criteria of the Department that has to be followed, as well as the needs of the school has to be catered for.
54. The Applicant called Mr Ingle as a witness. Mr Ingle gave testimony that was contradictory to what her case was. He testified that the entire process was done correctly, and personally he did not intervene to sway the decision of the Interview Committee. The Interview Committee was mandated to set the criteria, which would address the curricular needs of the school, and the issue of the Applicant’s qualifications and experience did not entitle her to be automatically short-listed.
55. Mr Madikane’s evidence was purely opinion based, and he did state that he had no experience in the recruitment and selection processes in a government department. His view that manufacturing included electrical may have been from an industry perspective. However in the teaching and learning field it would seem that the Department of Education had different conceptions of this.
56. Mr Balgobind said that Mr Ingle had stated that manufacturing, engineering and technology referred to mechanical engineering, but he did not know in what context this was stated. This seemed to have been the hub of the Applicant’s case before the Council, and it would seem that Mr Balgobind had other points of difference with the running of the school, which he ventilated at the hearing.
57. It is my view that the Applicant cannot prescribe how the Respondent should draft its advertisements, and should she have felt that the advertisement was incorrect the Council is not a proper forum to adjudicate on this point.
58. However the Council can decide on whether she was unfairly excluded from the short-listing, thereby rendering the whole process flawed, and it is from this perspective that this matter has been approached. The Commissioner can determine the true nature of the dispute, and the true nature is as set out in Section 186 (2)(a). However I find that the Respondent has complied with all the necessary procedures, and although the Applicant might be suitable for other posts, the finding that she was not suitable for this post was in accordance with procedure.
59. I find that the Respondent has not committed an unfair labour practice against the Applicant.
60. The application is dismissed.
61 There is no order as to costs.