Case Number: PSES801-18/19WC
Province: Western Cape
Applicant: NAPTOSA OBO JONES, P
Respondent: 1st Respondent Department of Education Western Cape, 2nd Respondent SEPTEMBER, J
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the Department of Education - Western Cape (WCED) in Cape Town
Award Date: 15 October 2019
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES801-18/19WC
Date of Award: 15 October 2019
In the Arbitration between:
NAPTOSA OBO JONES, P
DEPARTMENT OF EDUCATION – WESTERN CAPE
Union / Applicant’s representative: C Harris
Telephone: 021 686 8521
Telefax: 021 689 2998
1st Respondent’s representative: J Horne
Telephone: 021 467 2854
Telefax: 021 425 8612
2nd Respondent’s representative: A Forster
Telephone: 072 795 3536
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 21 June-, and 16 September 2019 at the premises of the Department of Education - Western Cape (WCED) in Cape Town. The proceedings were digitally recorded.
2. Ms. C Harris, an official of NAPTOSA, represented the Applicant, Ms. P Jones. Mr.
J Horne represented the 1st Respondent, the WCED. Ms. A Foster of A Foster attorneys represented the 2nd Respondent, Mr. J September.
3. At the conclusion of the proceedings the parties have agreed to submit written closing arguments on 23 September 2019. I have received the written closing arguments of the parties on this day. I consider 23 September 2019 being the last day of the arbitration.
THE ISSUE IN DISPUTE
4. 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
5. The Applicant is employed as a Head of Department (HOD) at Arcadia Secondary School in Bonteheuwel. She applied for the Deputy Principal post at the school which was advertised as post number 2018 in vacancy list 1/2018.
6. The Applicant and the 2nd Respondent were shortlisted and interviewed for the post. The School Governing Body (SGB) recommended to the WCED that the 2nd Respondent be appointed. The WCED appointed the 2nd Respondent to the post.
7. On 11 January 2019 the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC. A certificate of non-resolution of the dispute was issued on 11 February 2019. The Applicant filed a request for arbitration of the dispute on 15 March 2019. No pre-arbitration conference was held between the parties.
8. The Applicant claims that the WCED committed an unfair labour practice in relation to promotion. The Applicant is seeking an order to the effect that the appointment of the 2nd Respondents be set aside and for the appointment process be redone. The 1st Respondent denies any unfair conduct.
SUMMARY OF EVIDENCE AND ARGUMENT
9. Documents marked as bundle A1-31 and bundle B1-59 were submitted into evidence. The Applicant testified and called two witnesses. The 1st Respondent called two witnesses. The parties submitted written closing arguments. 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
10. Ms. P Jones testified under oath. She is an educator at the school for 30 years and a HOD for the past 7 years.
11. Ms. Jones believes that the appointment of the 2nd Respondent was orchestrated by the Principal of the school, Ms. Nassen, and two educators, Ms. Hoffmann and Ms. Jacobs. They served on the SGB and have along with 4 other SGB members conduced the interviews for the Deputy Principal Post.
12. Ms. Jones testified that Ms. Nassen has a personal vendetta against her and has surrounded her with educators on the management team to lessen her managerial experience. She said that Ms. Nassen allowed her only once to act as Deputy Principal. Ms. Jones said that in 2016 Ms. Nassen wrote to Ms. Oberkleiner of the Metro Office to inform her that she, Ms. Nassen, cannot work with her. Ms. Jones submitted that she applied for the Deputy Principal post which was advertised in 2016 and was the only candidate to have been interviewed. She said that no appointment was made and that she does not know why that was.
13. Ms. Jones testified that in 2017 Ms. Jacobs was nominated by the 2nd Respondent to serve on the SGB. She believes that Ms. Jacobs’s appointment was manipulated.
14. Ms. Jones referred to the scores of each member of the interview panel and pointed out that Ms. Nassen, Ms. Hoffmann and Ms. Jacobs scored her below 60%. She said that this was “pre-orchestrated” and that there was a strategic plan so that she will not be nominated to the SGB.
15. Under cross-examination, Ms. Jones agreed that she asked the Circuit Manager, in front of all the educators, why Ms. Nassen was appointed. She agreed that it was unprofessional of her. She agreed that she may have acted as Deputy Principal three times in the past 4 years.
16. It was pointed out to Ms. Jones that Ms. Boer, a SGB member and a parent, who served on the interview panel, scored the 2nd Respondent higher. Ms. Jones said she does not have proof but that the scores given by Ms. Boer to the 2nd Respondent were inflated. It was put to Ms. Jones that another parent on the interview panel, Mr. Hugo, scored both candidates the same. Ms. Jones replied that he played it safe.
17. Ms. Jones was referred to the interview minutes which shows that two parents were in favour of her appointment and two parents were in favour of appointing the 2nd Respondent. Ms. Jones replied that the process is driven by the educators (being Ms. Nassen, Ms. Hoffmann and Ms. Jacobs).
18. Ms. Jones agreed that she was not treated unfairly during the interview process itself.
19. With regards to her testimony that Ms. Jacobs was nominated by the 2nd Respondent to serve on the SGB she said that she does not evidence to support it. It was pointed out to Ms. Jones that the Deputy Principal post was not advertised in 2017 when Ms. Jacobs became a member of the SGB. Ms. Jones replied that everyone knew that the post will be advertised.
20. Ms. G Moerat testified under oath. She is the SGB chairperson at the school and was part of the interview panel.
21. Ms. Morat testified that prior to the interviews she and two other SGB members left the room to smoke. They left Ms. Nassen, Ms. Jabobs, Ms. Hoffman and Mr. Boer in the room. When they returned the atmosphere in the room was not the same. She could not give a reason for it.
22. She said that she had seen nothing untoward during the interviews and that the candidates were treated the same. She testified that she scored the applicant higher than the 2nd respondent but that both candidates were suitable for appointment.
23. Under cross-examination Ms. Moerat explained that after the interviews the panel deliberated, it was decided by consensus to nominate the 2nd Respondent to the SGB. In her view the process was fair.
24. Ms. B Julies testified under oath. She is the SGB treasurer and was part of the interview panel.
25. Ms. Julies testified that she scored the applicant more than the 2nd respondent based on their interviews and presentations. Ms. Julies said that during the deliberations Ms. Hassen said that the applicant exceeded her time during the presentation. She felt that this was wrong but she cannot say that the applicant was treated unfairly.
26. Under cross-examination Ms. Julies testified that she did not voice any disagreement with the nomination of the 2nd Respondent as the preferred candidate.
The Respondent’s evidence
27. Ms. M Nassen testified under oath. She is the Principal at the school since 2014 and was part of the interview panel for the Deputy Principal post.
28. Ms. Nassen testified that Ms. Jabobs was elected on the SGB and that an electoral officer has overseen the elections process.
29. Ms. Nassen explained that when she was appointed in 2014 Ms. Jones did asked the circuit manager in front of staff why she was appointed. She said that she has since moved on from that incident. She denied that she has a vendetta against the applicant.
30. Under cross examination Ms. Nassen explained that a Dr. Fortuin acted as Deputy Principal because he was the longest serving HOD at that time. It was put to her that the nomination of Ms. Jacobs on the SGB was “pre-orchestrated”. Ms. Nassen replied that she was not present during the selection process.
31. Ms. Nassen denied that she wrote a letter to the WCED in which she indicated that she does not want to work with the applicant.
32. Ms. Nassen was referred to her scoresheet of the applicant and was questioned about notes that she made on the scoresheet. She said that she went into the interviews with an open mind and made notes during the interviews. She testified that in the end, the 2nd Respondent was the best candidate.
33. Ms. S Oberkleiner testified under oath. She is the Circuit Manager for the Metro Central area. She was the WCED representative during the interviews process. She testified that no mistakes were made during the process.
34. Under cross-examination Ms. Oberkleiner said that it came to her knowledge that the applicant and Ms. Hassen does not always see eye to eye. She is not aware of a letter that Ms. Hassen has wrote the WCED that she does not want to work with the Applicant. She said that the interview questions were drafted shortly before the interviews. She said that she kept her own scores of how the candidates performed during the interviews. In her view the 2nd Respondent performed better than the Applicant.
35. The written 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 analyses of the evidence and argument to the extent that need to.
36. In short, the Applicant argued that the school is divided in cliques and that the appointment process was “pre-orchestrated” by the educators on the interview panel. The fact that the educators scored her lower than the 2nd Respondent proves this. Ms. G Moerat felt that the atmosphere changed when she stepped back into the room after a smoke break. Ms. Moerat and Ms. Julies testified that the Applicant did better in the interviews. The Applicant was prejudiced and the appointment of the 2nd Respondent must be set aside.
37. The 1st and 2nd Respondent’s arguments are in essence that the applicant’s allegation that the interview process was “pre-orchestrated” is without substance and that the Applicant has not been unfairly treated during the process.
ANALYSIS OF EVIDENCE AND ARGUMENTS
38. 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)).
39. I will begin by briefly setting out the principles to should be taken into account when dealing with promotion disputes.
40. 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…”
41. 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.
42. In City of Tswane 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.
43. Having the abovementioned principles in mind, I will now evaluate the Applicant’s case.
44. It is clear from the evidence presented that the Applicant and Ms. Nassen do not always see eye to eye. But will Ms. Nassen go as far as to pre-orchestrate (to use the Applicant’s words) the nomination of the 2nd Respondent to the SGB as the preferred candidate for the Deputy Principal post?
45. The Applicant claims that the Ms. Jones has a vendetta against her. To proof this vendetta, the applicant made several claims. I will deal with only some of them. In her evidence in chief she submitted only acted once at Deputy Principal. But in cross-examination she conceded that she acted more than once. The Applicant testified that she applied for the Deputy Principal post that was advertised in 2016 but that no appointment was made. The Applicant could not provide a reason why no appointment was made and the fact that no appointment was made cannot be linked back to Ms. Nassen. The Applicant claims that Ms. Nassen wrote the WCED that she does not want to work with Applicant. But she has not presented any documentary proof to support her contention. Ms. Nassen has denied that she wrote such a letter and Ms. Oberkleiner is also unaware of the existence of such a letter. The Applicant believes that Ms. Jacobs’s appointment to the SGB was somehow manipulated. But the uncontested version of Ms. Nassen is that she was not there when the elections took place and that there was an electoral officer who run the elections. I am not persuaded that there is evidence to proof the existence of the so-called vendetta against the Applicant.
46. Only two of the seven SGB members who served on the interview panel scored the Applicant more than the 2nd Respondent. One of the parents, Ms. Boer, scored the 2nd Respondent more than the Applicant and another parent, Mr. Hugo, scored both candidates the same. When the applicant was confronted with these facts, she claimed that the scores given by Ms. Boer were inflated and that Mr. Hugo played it safe. But the applicant presented no evidence to support these claims.
47. Moreover, the two parents who scored the applicant more than the 2nd Respondent during the interviews, Ms. Moerat and Ms. Julies, both testified that the interview process was fair. The Circuit Manager, Ms. Oberkleiner added that no mistakes were made during the process and that in her view, the 2nd Respondent performed better than the Applicant during the interviews. The Applicant confirmed that she was given a sufficient time to answer the interview questions and that she was not prejudice during the interview.
48. The interview minutes shows that two parents were in favour of the Applicant’s appointment whilst two parents were in favour of appointing the 2nd Respondent. There is no evidence that the two parents who were in favour of the 2nd Respondent was somehow influenced by Ms. Nassen, or anyone else, to support the 2nd Respondent. After deliberations, the interview panel has reached consensus to nominate the 2nd Respondent as the preferred candidate to the SGB. Again, there is no evidence that the consensus seeking process was somehow manipulated by Ms. Nassen. The notion that the interview process was “pre-orchestrated” cannot hold in light of the lack of evidence to support it.
49. I find that the Applicant has failed to discharge the onus of proving an unfair labour practice relating to promotion. The relief that the Applicant is seeking must accordingly fail.
The 1st Respondent, the Department of Education – Western Cape has not committed an unfair labour practice relating to promotion in this instance. The application is dismissed.
ELRC Panellist: Jacques Buitendag