PSES 341-19/20 EC
PSES 341-19/20 EC
Award Date:
16 October 2019
Case Number: PSES 341-19/20 EC
Province: Eastern Cape
Applicant: NAPTOSA obo Nontuthuzelo Mantsai
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 16 October 2019
Arbitrator: Jonathan Gruss
Panellist: Jonathan Gruss
Case No.: PSES 341-19/20 EC
Date of Award: 16 October 2019
In the ARBITRATION between:
NAPTOSA obo Nontuthuzelo Mantsai (Applicant)
and
Department of Education – Eastern Cape
(Respondent)
Applicant’s representative: Adv Saayman
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
6055 Telephone: 041 364 0399
Telefax: 041 364 0259
Email duncans@naptosa.org.za
Respondent’s representative: Mr. Sam
Respondent’s address: Private Bag X0032
Bhisho
5606
Telephone: 0406084540
Telefax: 0406084458431
Email tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the premises of Dordrecht High School in Dordrecht on 4 October 2019. The proceedings were electronically recorded. The Applicant, Nontuthuzelo Mantsai was represented by Adv Saayman, an official from NAPTOSA, a registered trade union. The Respondent, Department of Education: Eastern Cape was represented by Mr Sam, a Labour Relations Officer. The parties agreed to submit written closing arguments by no later than 11 October 2019. Only the Applicant party submitted written closing arguments, the Respondent failed to do so.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not appointing the Applicant, Nontuthuzelo Mantsai as the Head of Department at Anako Senior Primary School.
BACKGROUND
3. In terms of narrowing of the issues at the commencement of the arbitration hearing as well as contained in the pre-arbitration minute, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant is currently employed as a Post Level 1 Educator at Anako Senior Primary School.
3.2 She applied for the position of Head of Department at Anako Senior Primary School and was shortlisted and interviewed. She was unsuccessful and another candidate, the current incumbent, Ms Kula was appointed.
3.3 The Applicant does not seek to unseat the incumbent but seeks compensation. She currently earns R231 549.00 per annum.
4. She claims that an unfair labour practice was committed in the interview process in that an irregularity occurred in that the Principal influenced the process and the Deputy Principal of the school influenced interview panellists (parents) to give the incumbent a higher score than her. There was also no training of the interview panel before shortlisting and the SGB only received training before the interviews.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE
6. The Applicant testified under oath to the following effect.
6.1 She has been employed by the Respondent as a permanent educator although she received her diploma in 1994, she started working for a NGO in 1995 and in 1999 she worked as a temporary educator at different schools. She was appointed as a permanent educator at Anako Senior Primary School during May 2009. She qualified for the post that is the subject matter of this dispute..
6.2 Before the interviews, the Deputy Principal, Mr Penxe could not hide who he wanted to be appointed in the post after the post was advertised. He wanted Ms Kula, the current incumbent. Her union observer reported to her that there was some irregularity in that some of the panellists had to be assisted now and again. This was not the first time that this was done when scoring.
6.3 One of the panellists, Ms Ndabeni (parent) had a relationship (friendship) with the Deputy Principal in that they were close friends. Ms Ndabeni gave the incumbent a score of 24, whereas Mondeleki (educator) gave the incumbent a score of 22 and Ms Eleku (parent) gave the incumbent a score of 25 marks. Both Ndabeni and Elefu were friends of the Deputy Principal.
6.4 Under cross examination, she conceded that the incumbent, Ms Kula had longer service than her. She had 10 years’ service whereas Ms Kulu had 14 years’ service.
7. Mr Mzolisi Smawo testified under oath to the following effect.
7.1 He was the NAPTOSA observer during the interviews. There were no irregularities during shortlisting however during the interviews, he witnessed members of the panel scoring wrongly. After the candidates left, the resource person, Mr Qunta told the two ladies that they had scored wrongly, he destroyed the score sheet and assisted them in scoring again.
7.2 The first candidate to be interviewed, Ms Kula, her score sheet was destroyed.
7.3 In his opinion, the Applicant answered the best out of all the candidates and Ms Kula did not perform well.
7.4 SADTU was happy with the scoring and the Principal, the resource person assisted the two parent panellists with scoring. When this occurred, he objected to what was happening and indicated that it was irregular. The interviews were held on 13 May 2019 and the ratification by the SGB was held on 14 May 2019. He objected before the ratification meeting.
7.5 Under cross examination, when questioned on what he meant that the panel members could not score correctly, he responded that the Principal showed the parents how to score. When questioned further what he meant, he testified that the Principal showed them how to score on the individual score sheets.
RESPONDENT’S EVIDNECE
8. Mr Loyiso Qunta testified under oath to the following effect.
8.1 He has been the Principal at Anako Senior Primary School since December 2015 and before that as from 1999, he was the Deputy Principal.
8.2 Panellists are trained by the Department and before the interviews he held the refresher course with the panel members. The problem concerning the score sheets was the positioning of the numeral numbering. A score sheet is subdivided into five columns, the first column from the right is for number 1, the second column from the right is number 2, the third column from the right is number 3, the fourth column from the right is number 4 and the last column is number 5. What occurred is that one of the panel members when scoring the answers to the questions asked awarded for example 5 marks and number 5 would be written in the column made for number three. The marks awarded by the parent panellists were not changed, what they did was to ensure that the marks awarded was placed in the column associated with the marks given.
8.3 NAPTOSA’s representative had a problem claiming that the person who was rated as number 1 did not deserve to be rated as number 1.
8.4 Under cross examination, he conceded that the score sheets that were incorrectly filled in he destroyed. However, he did show the observers the score sheets and explained to them the errors.
8.5 He is aware that the Deputy Principal preferred the incumbent, Ms Kula and that the Deputy Principal wanted Ms Kula to act in the HOD position and he vetoed this in that it would be wrong for Ms Kula to act in the position in that she would be given an unfair advantage and this could create a reasonable expectation. The Deputy Principal was not part of the panel and he cannot say that the Deputy Principal influenced the process.
9. Mr Sidwel Tyilana testified under oath to the following effect.
9.1 He is a member of the SGB and also the chairperson and was the chairperson of the interview panel. He was trained and attended many training sessions.
9.2 As to the scoring there were two members of the interview panel when scoring inserted the marks awarded into the wrong column. The Principal had to assist the two panel members to rectify this and this was done on a new score sheet.
9.3 Under cross examination when question as to who was the best person during interviews, he responded that Ms Kula was the best candidate however the Applicant was close in strength to the incumbent as a candidate.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
11. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA).”
12. As was said in Public Servants Association obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
13. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at [14] held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) 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.”
14. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others [2012] 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
15. I pause at this juncture to emphasize as an arbitrator in such disputes, my job is not to evaluate each candidate and determine who the best candidate is. That is a job of the interview panel. I’m required to determine whether an unfair labour practice was committed when the Applicant was not appointed. The proverbial question is whether the Applicant was afforded a fair opportunity to compete for the position.
16. I find the evidence of the Principal, Mr Loyiso Qunta to be decisive in determining whether the Applicant was afforded a fair opportunity to compete for the position. Mr Qunta came across as a honest witness and even conceded that the Deputy Principal, Mr Penxe favoured the incumbent in getting the position. However, Mr Penxe did not form part of the interview panel and therefore he did not participate in the process. Furthermore, when Mr Penxe suggested that the incumbent be appointed to act in the vacant position, he vetoed this in order to ensure that no candidate would have an unfair advantage. That is why instead of appointing someone to act in the position, Mr Penxe was instructed to take over the duties of HOD. The Applicant’s own witness, Mr Mzolisi Smawo when pressurised to explain what the Principal was doing, conceded that at no stage did the Principal tell the panel members what marks to allocate and therefore, the assistance offered was for the panel members who erred to ensure that the specific marks awarded for a specific question asked and answered were placed in the correct columns. Therefore, the marks awarded by the two panellists were not altered. There’s no evidence before me that Mr Penxe influence panel members in awarding the incumbent more marks than the Applicant.
17. I am therefore satisfied that the Applicant was afforded a fair opportunity to compete for the position and at the end of the interviews the interview panel as well as the SGB ratifying the interview panel’s recommendation recommended the incumbent to be appointed.
AWARD
18 The Respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not appoint the applicant, Nontuthuzelo Mantsai.
19. The Applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator
Province: Eastern Cape
Applicant: NAPTOSA obo Nontuthuzelo Mantsai
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 16 October 2019
Arbitrator: Jonathan Gruss
Panellist: Jonathan Gruss
Case No.: PSES 341-19/20 EC
Date of Award: 16 October 2019
In the ARBITRATION between:
NAPTOSA obo Nontuthuzelo Mantsai (Applicant)
and
Department of Education – Eastern Cape
(Respondent)
Applicant’s representative: Adv Saayman
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
6055 Telephone: 041 364 0399
Telefax: 041 364 0259
Email duncans@naptosa.org.za
Respondent’s representative: Mr. Sam
Respondent’s address: Private Bag X0032
Bhisho
5606
Telephone: 0406084540
Telefax: 0406084458431
Email tanduxolo.dabi@edu.ecprov.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the premises of Dordrecht High School in Dordrecht on 4 October 2019. The proceedings were electronically recorded. The Applicant, Nontuthuzelo Mantsai was represented by Adv Saayman, an official from NAPTOSA, a registered trade union. The Respondent, Department of Education: Eastern Cape was represented by Mr Sam, a Labour Relations Officer. The parties agreed to submit written closing arguments by no later than 11 October 2019. Only the Applicant party submitted written closing arguments, the Respondent failed to do so.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not appointing the Applicant, Nontuthuzelo Mantsai as the Head of Department at Anako Senior Primary School.
BACKGROUND
3. In terms of narrowing of the issues at the commencement of the arbitration hearing as well as contained in the pre-arbitration minute, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant is currently employed as a Post Level 1 Educator at Anako Senior Primary School.
3.2 She applied for the position of Head of Department at Anako Senior Primary School and was shortlisted and interviewed. She was unsuccessful and another candidate, the current incumbent, Ms Kula was appointed.
3.3 The Applicant does not seek to unseat the incumbent but seeks compensation. She currently earns R231 549.00 per annum.
4. She claims that an unfair labour practice was committed in the interview process in that an irregularity occurred in that the Principal influenced the process and the Deputy Principal of the school influenced interview panellists (parents) to give the incumbent a higher score than her. There was also no training of the interview panel before shortlisting and the SGB only received training before the interviews.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE
6. The Applicant testified under oath to the following effect.
6.1 She has been employed by the Respondent as a permanent educator although she received her diploma in 1994, she started working for a NGO in 1995 and in 1999 she worked as a temporary educator at different schools. She was appointed as a permanent educator at Anako Senior Primary School during May 2009. She qualified for the post that is the subject matter of this dispute..
6.2 Before the interviews, the Deputy Principal, Mr Penxe could not hide who he wanted to be appointed in the post after the post was advertised. He wanted Ms Kula, the current incumbent. Her union observer reported to her that there was some irregularity in that some of the panellists had to be assisted now and again. This was not the first time that this was done when scoring.
6.3 One of the panellists, Ms Ndabeni (parent) had a relationship (friendship) with the Deputy Principal in that they were close friends. Ms Ndabeni gave the incumbent a score of 24, whereas Mondeleki (educator) gave the incumbent a score of 22 and Ms Eleku (parent) gave the incumbent a score of 25 marks. Both Ndabeni and Elefu were friends of the Deputy Principal.
6.4 Under cross examination, she conceded that the incumbent, Ms Kula had longer service than her. She had 10 years’ service whereas Ms Kulu had 14 years’ service.
7. Mr Mzolisi Smawo testified under oath to the following effect.
7.1 He was the NAPTOSA observer during the interviews. There were no irregularities during shortlisting however during the interviews, he witnessed members of the panel scoring wrongly. After the candidates left, the resource person, Mr Qunta told the two ladies that they had scored wrongly, he destroyed the score sheet and assisted them in scoring again.
7.2 The first candidate to be interviewed, Ms Kula, her score sheet was destroyed.
7.3 In his opinion, the Applicant answered the best out of all the candidates and Ms Kula did not perform well.
7.4 SADTU was happy with the scoring and the Principal, the resource person assisted the two parent panellists with scoring. When this occurred, he objected to what was happening and indicated that it was irregular. The interviews were held on 13 May 2019 and the ratification by the SGB was held on 14 May 2019. He objected before the ratification meeting.
7.5 Under cross examination, when questioned on what he meant that the panel members could not score correctly, he responded that the Principal showed the parents how to score. When questioned further what he meant, he testified that the Principal showed them how to score on the individual score sheets.
RESPONDENT’S EVIDNECE
8. Mr Loyiso Qunta testified under oath to the following effect.
8.1 He has been the Principal at Anako Senior Primary School since December 2015 and before that as from 1999, he was the Deputy Principal.
8.2 Panellists are trained by the Department and before the interviews he held the refresher course with the panel members. The problem concerning the score sheets was the positioning of the numeral numbering. A score sheet is subdivided into five columns, the first column from the right is for number 1, the second column from the right is number 2, the third column from the right is number 3, the fourth column from the right is number 4 and the last column is number 5. What occurred is that one of the panel members when scoring the answers to the questions asked awarded for example 5 marks and number 5 would be written in the column made for number three. The marks awarded by the parent panellists were not changed, what they did was to ensure that the marks awarded was placed in the column associated with the marks given.
8.3 NAPTOSA’s representative had a problem claiming that the person who was rated as number 1 did not deserve to be rated as number 1.
8.4 Under cross examination, he conceded that the score sheets that were incorrectly filled in he destroyed. However, he did show the observers the score sheets and explained to them the errors.
8.5 He is aware that the Deputy Principal preferred the incumbent, Ms Kula and that the Deputy Principal wanted Ms Kula to act in the HOD position and he vetoed this in that it would be wrong for Ms Kula to act in the position in that she would be given an unfair advantage and this could create a reasonable expectation. The Deputy Principal was not part of the panel and he cannot say that the Deputy Principal influenced the process.
9. Mr Sidwel Tyilana testified under oath to the following effect.
9.1 He is a member of the SGB and also the chairperson and was the chairperson of the interview panel. He was trained and attended many training sessions.
9.2 As to the scoring there were two members of the interview panel when scoring inserted the marks awarded into the wrong column. The Principal had to assist the two panel members to rectify this and this was done on a new score sheet.
9.3 Under cross examination when question as to who was the best person during interviews, he responded that Ms Kula was the best candidate however the Applicant was close in strength to the incumbent as a candidate.
ANALYSIS OF EVIDENCE AND ARGUMENT
10. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
11. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA).”
12. As was said in Public Servants Association obo Dalton & Another v Department of Public Works [1998] 9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
13. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at [14] held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) 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.”
14. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others [2012] 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
15. I pause at this juncture to emphasize as an arbitrator in such disputes, my job is not to evaluate each candidate and determine who the best candidate is. That is a job of the interview panel. I’m required to determine whether an unfair labour practice was committed when the Applicant was not appointed. The proverbial question is whether the Applicant was afforded a fair opportunity to compete for the position.
16. I find the evidence of the Principal, Mr Loyiso Qunta to be decisive in determining whether the Applicant was afforded a fair opportunity to compete for the position. Mr Qunta came across as a honest witness and even conceded that the Deputy Principal, Mr Penxe favoured the incumbent in getting the position. However, Mr Penxe did not form part of the interview panel and therefore he did not participate in the process. Furthermore, when Mr Penxe suggested that the incumbent be appointed to act in the vacant position, he vetoed this in order to ensure that no candidate would have an unfair advantage. That is why instead of appointing someone to act in the position, Mr Penxe was instructed to take over the duties of HOD. The Applicant’s own witness, Mr Mzolisi Smawo when pressurised to explain what the Principal was doing, conceded that at no stage did the Principal tell the panel members what marks to allocate and therefore, the assistance offered was for the panel members who erred to ensure that the specific marks awarded for a specific question asked and answered were placed in the correct columns. Therefore, the marks awarded by the two panellists were not altered. There’s no evidence before me that Mr Penxe influence panel members in awarding the incumbent more marks than the Applicant.
17. I am therefore satisfied that the Applicant was afforded a fair opportunity to compete for the position and at the end of the interviews the interview panel as well as the SGB ratifying the interview panel’s recommendation recommended the incumbent to be appointed.
AWARD
18 The Respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not appoint the applicant, Nontuthuzelo Mantsai.
19. The Applicant is not entitled to any relief.
Name: Jonathan Gruss
(ELRC) Arbitrator