PSES 304-19/20 EC
PSES 304-19/20 EC
Award Date:
4 November 2019
Case Number: PSES 304-19/20 EC
Province: Eastern Cape
Applicant: NAPTOSA obo De La Rosa
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education in Port Elizabeth
Award Date: 4 November 2019
Arbitrator: Theresa Malgas-Senye
Case Number: PSES 304-19/20 EC
Commissioner: Theresa Malgas-Senye
Date of Award: 04 November 2019
In the ARBITRATION between
(Union/Applicant)
NAPTOSA obo De La Rosa
And
( Respondent)
Department of Education-Eastern Cape Province
Union/Applicant’s representative: NAPTOSA
Mr. Duncan Saayman
Union/Applicant’s address: Port Elizabeth
Eastern Cape
Telephone: 082 519 1005
Email: duncans@naptosa.org.za
Respondent’s representative: Department of Education
Respondent’s address: Eastern Cape
Mr Jonathan Bean
Telephone: 060 508 6656
Telefax:
E-mail:
Jonathanbean1986@gmail.com
DETAILS OF HEARING
1. This matter was enrolled for arbitration in terms of section 186(2) (a of the Labour Relations Act 66 of 1995 as amended (“the Act”) and was held at The Department of Education in Port Elizabeth on 18 October 2019.
2. The Applicant was represented by Mr. Adams from NAPTOSA and the Respondent by its Labour Relations Practitioner.
ISSUES TO BE DECIDED
3. The purpose of this arbitration is to determine whether the Respondent committed an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act when the Applicant’s application was sifted out and she was not considered to be shortlisted for a position she had applied for.
BACKGROUND FACTS
4. The Applicant filed a dispute concerning an unfair labour practice as she believed she was unfairly treated by the Respondent when her application was shifted out and not considered for shortlisting.
5. The Applicant’s case is that she was unfairly treated and sought compensation.
6. A common bundle were handed in from both parties and the parties agreed that the contents of the submitted bundle is what it purports to be.
SURVEY OF EVIDENCE
7.This is a summary and does not reflect all of the evidence and argument heard and considered in reaching a decision.
8. The Applicant and Respondent did not call any witnesses.
9.The Applicant submitted that to ensure that the objectives of advertising are met, the following principles need to be adhered to:
(a)An advertisement should not favour, prejudice or discriminate.
(b) Advertisements should give a clear indication of requirements that must be met.
(c)The widest possible number of applicants must be attracted in the most cost-effective manner.
10. The Applicant submitted that the shifting process seeks to identify those applications that meet the basic entry-level requirements for educators for the Deputy Principals post as per the PAM and those advertised.
11. The Applicant submits that the purpose of short listing is to identify those candidates who best meet the selection criteria for the post, who are most likely to be capable of carrying out the duties of the job, and about whom you wish to find out more during a formal interview.
12. The Applicant submitted that after having completed the shifting process and eliminated those applicants that do not meet the basic requirements, the next objective should be to identify a manageable size (pool) of applicants who are best suited to fill the position successfully and from whose ranks the most suitable candidate(s) is/are to be selected. B.5.4.9 of the PAM clearly states the following:
“’The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”’
13. The Applicant submitted that from the application form submitted by the (ECDOE) it is clear that the applicant met the minimum requirements. Furthermore, she submitted that as per the PAM and the Bulletin requirements the minimum qualification and five years teaching experience.
14. She further submitted that she has the quality and qualifications to hold the Deputy Principal position. She submitted that when she applied for the position, she submitted a salary advice to prove that she was acting in a managerial position in the school.
15. The Applicant testified that the Personnel Administrative Measures Document (PAM) clearly states that a candidate should not be disqualified or not shortlisted when an application meets all the requirements.
16. The Respondent submitted that the Applicant was not shortlisted because as the requirements states that a candidate should have managerial experience when applying for a position. He submitted that the Applicant did not have a managerial certificate.
17. Both parties agreed to file closing arguments.
18. Upon writing of this award all arguments were received by both parties.
ANALYSIS OF EVIDENCE
19. The issue to be decided is whether there was any unfair conduct in terms of section 186 (2) (a) of the Act.
20. It is evident that the main issue in dispute is whether or not the Respondent treated the Applicant fairly by not shortlisting her for a position she applied for and sifting out her application.
21. The Applicant’s case is that she was unfairly treated and sought compensation.
22. I took into account the submissions of Ms.De La Rosa to the extent of her understanding as to why she believes she was unfairly treated and that of Mr. Bean (the incumbent) in as far as his understanding of the process and procedures of shortlisting.
23. Circular 49 of 2005 of the Eastern Cape Department of Education stipulates the guidelines and procedures in how to deal with filling promotion posts.
24. The purpose of shortlisting is to identify those candidates who best meet the selection criteria for the post, who are most likely to be capable of carrying out the duties of the job and about whom you wish to find out more during a formal interview.
25. Furthermore after having completed the shifting process and eliminated those applicants that do not meet the basic requirements, the next objective should be identify a manageable size or pool of applicants who are best suited to fill the position successfully and from whose ranks the most suitable candidates are to be selected.
B.5.4.9 of the PAM clearly states that:
“’The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”’
26. Furthermore from the application form submitted by the Respondent (ECDOE) it is clear that the applicant met the minimum requirements.
27. Furthermore the PAM and the Bulletin requirements states that the minimum qualification for the post of Deputy Principal is a recognized three-year teaching qualification and five years’ experience. All of these requirements the applicant met.
28. I agree that it was clear that the selection panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and denied the applicant to be considered to be shortlisted.
29. It is clear that on the probabilities the interview committee adopted a different approach in the case of Mr. Bean (the incumbent) as his qualifications is in human resource management and not in school administration. His application was not rejected and no explanation was advanced for this apparent inconsistent treatment of the applicant.
30. It is clear in Section 186(2) (a) of the Labour Relations Act 66 of 1995 (hereafter the LRA) states: "Unfair labour practice means any unfair act or omission that arises between an employer and employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a ...”
31.In the case of Ga-Segonyana Local Municipality v Venter N.O and Others; Tlhlotlhalemaje, J. approved the following:
“[20] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others; it was held that the overall test is one of fairness, and that in deciding :
• whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include;
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
• or whether the employer’s decision was motivated by bad faith,
• was arbitrary, capricious, unfair or discriminatory;
• 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;
• or was taken in a biased manner;
• whether the employer failed to apply its mind to the promotion of the employee;
• or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
32. In this case and in more recent cases the courts have clarified the test to be that of fairness. It is clear from the submissions of the Respondent that it failed to meet its own standard regarding minimum requirements for the post, and the conduct was both arbitrary and inconsistent ,in that the successful candidate was not excluded from the sifting process, but who was shortlisted, interviewed and selected, had less years of experience then the applicant who was not afforded the opportunity to fairly compete for the post.
33. In this case the fairness of the selection process lay in the screening of all candidates against the set requirements in a similar approach and this was not done.
34. On this basis I find that the applicant was unfairly treated. Section 194(4) of the Act provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances.
35. In the light of the above and all arguments advanced I find that the Respondent committed an unfair labour practice by sifting out the Applicant’s application when she applied for a position. The above circular was clear in this regard.
36. Furthermore, the Respondent failed to apply its own policies when shortlisting was done. I am of the view that the Applicant demonstrated that she was not given a fair opportunity to compete for the position she applied for.
37. The Applicant sought compensation as remedy.
38. I find that the Respondent committed an unfair labour practice by sifting out the Applicant’s application when she applied for a position and denied her a chance to compete for a position that she qualified for. Moreover, I find that the Respondent failed to apply its own policies when it dealt with the Applicant’s application and therefore prejudiced the Applicant to compete for the position. The prejudice to the Applicant was material. In the premise I render the following award:
AWARD
39. I find that the Respondent committed an unfair labour practice in respect of the Applicant, Ms. Norma Ophelia De La Rosa.
40. The Respondent, Department of Education Eastern Cape Province is ordered to pay Ms N.O. De La Rosa the sum of R35 300.00 times four months =R141 200.00 which is equivalent to four-months’ salary.
41. Payment of the amount referred to in paragraph 40 must be affected by paying the said amount into Ms Norma Ophelia De La Rosa's bank account.
42. The payment referred to in paragraph 40 is to be paid by no later than 27 November 2019.
Signature:
Commissioner:Theresa Malgas-Senye
Sector: ELRC
Province: Eastern Cape
Applicant: NAPTOSA obo De La Rosa
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education in Port Elizabeth
Award Date: 4 November 2019
Arbitrator: Theresa Malgas-Senye
Case Number: PSES 304-19/20 EC
Commissioner: Theresa Malgas-Senye
Date of Award: 04 November 2019
In the ARBITRATION between
(Union/Applicant)
NAPTOSA obo De La Rosa
And
( Respondent)
Department of Education-Eastern Cape Province
Union/Applicant’s representative: NAPTOSA
Mr. Duncan Saayman
Union/Applicant’s address: Port Elizabeth
Eastern Cape
Telephone: 082 519 1005
Email: duncans@naptosa.org.za
Respondent’s representative: Department of Education
Respondent’s address: Eastern Cape
Mr Jonathan Bean
Telephone: 060 508 6656
Telefax:
E-mail:
Jonathanbean1986@gmail.com
DETAILS OF HEARING
1. This matter was enrolled for arbitration in terms of section 186(2) (a of the Labour Relations Act 66 of 1995 as amended (“the Act”) and was held at The Department of Education in Port Elizabeth on 18 October 2019.
2. The Applicant was represented by Mr. Adams from NAPTOSA and the Respondent by its Labour Relations Practitioner.
ISSUES TO BE DECIDED
3. The purpose of this arbitration is to determine whether the Respondent committed an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act when the Applicant’s application was sifted out and she was not considered to be shortlisted for a position she had applied for.
BACKGROUND FACTS
4. The Applicant filed a dispute concerning an unfair labour practice as she believed she was unfairly treated by the Respondent when her application was shifted out and not considered for shortlisting.
5. The Applicant’s case is that she was unfairly treated and sought compensation.
6. A common bundle were handed in from both parties and the parties agreed that the contents of the submitted bundle is what it purports to be.
SURVEY OF EVIDENCE
7.This is a summary and does not reflect all of the evidence and argument heard and considered in reaching a decision.
8. The Applicant and Respondent did not call any witnesses.
9.The Applicant submitted that to ensure that the objectives of advertising are met, the following principles need to be adhered to:
(a)An advertisement should not favour, prejudice or discriminate.
(b) Advertisements should give a clear indication of requirements that must be met.
(c)The widest possible number of applicants must be attracted in the most cost-effective manner.
10. The Applicant submitted that the shifting process seeks to identify those applications that meet the basic entry-level requirements for educators for the Deputy Principals post as per the PAM and those advertised.
11. The Applicant submits that the purpose of short listing is to identify those candidates who best meet the selection criteria for the post, who are most likely to be capable of carrying out the duties of the job, and about whom you wish to find out more during a formal interview.
12. The Applicant submitted that after having completed the shifting process and eliminated those applicants that do not meet the basic requirements, the next objective should be to identify a manageable size (pool) of applicants who are best suited to fill the position successfully and from whose ranks the most suitable candidate(s) is/are to be selected. B.5.4.9 of the PAM clearly states the following:
“’The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”’
13. The Applicant submitted that from the application form submitted by the (ECDOE) it is clear that the applicant met the minimum requirements. Furthermore, she submitted that as per the PAM and the Bulletin requirements the minimum qualification and five years teaching experience.
14. She further submitted that she has the quality and qualifications to hold the Deputy Principal position. She submitted that when she applied for the position, she submitted a salary advice to prove that she was acting in a managerial position in the school.
15. The Applicant testified that the Personnel Administrative Measures Document (PAM) clearly states that a candidate should not be disqualified or not shortlisted when an application meets all the requirements.
16. The Respondent submitted that the Applicant was not shortlisted because as the requirements states that a candidate should have managerial experience when applying for a position. He submitted that the Applicant did not have a managerial certificate.
17. Both parties agreed to file closing arguments.
18. Upon writing of this award all arguments were received by both parties.
ANALYSIS OF EVIDENCE
19. The issue to be decided is whether there was any unfair conduct in terms of section 186 (2) (a) of the Act.
20. It is evident that the main issue in dispute is whether or not the Respondent treated the Applicant fairly by not shortlisting her for a position she applied for and sifting out her application.
21. The Applicant’s case is that she was unfairly treated and sought compensation.
22. I took into account the submissions of Ms.De La Rosa to the extent of her understanding as to why she believes she was unfairly treated and that of Mr. Bean (the incumbent) in as far as his understanding of the process and procedures of shortlisting.
23. Circular 49 of 2005 of the Eastern Cape Department of Education stipulates the guidelines and procedures in how to deal with filling promotion posts.
24. The purpose of shortlisting is to identify those candidates who best meet the selection criteria for the post, who are most likely to be capable of carrying out the duties of the job and about whom you wish to find out more during a formal interview.
25. Furthermore after having completed the shifting process and eliminated those applicants that do not meet the basic requirements, the next objective should be identify a manageable size or pool of applicants who are best suited to fill the position successfully and from whose ranks the most suitable candidates are to be selected.
B.5.4.9 of the PAM clearly states that:
“’The list of short-listed candidates for interview purposes should not exceed five per post. An educator, who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”’
26. Furthermore from the application form submitted by the Respondent (ECDOE) it is clear that the applicant met the minimum requirements.
27. Furthermore the PAM and the Bulletin requirements states that the minimum qualification for the post of Deputy Principal is a recognized three-year teaching qualification and five years’ experience. All of these requirements the applicant met.
28. I agree that it was clear that the selection panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and denied the applicant to be considered to be shortlisted.
29. It is clear that on the probabilities the interview committee adopted a different approach in the case of Mr. Bean (the incumbent) as his qualifications is in human resource management and not in school administration. His application was not rejected and no explanation was advanced for this apparent inconsistent treatment of the applicant.
30. It is clear in Section 186(2) (a) of the Labour Relations Act 66 of 1995 (hereafter the LRA) states: "Unfair labour practice means any unfair act or omission that arises between an employer and employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a ...”
31.In the case of Ga-Segonyana Local Municipality v Venter N.O and Others; Tlhlotlhalemaje, J. approved the following:
“[20] In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others; it was held that the overall test is one of fairness, and that in deciding :
• whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include;
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
• or whether the employer’s decision was motivated by bad faith,
• was arbitrary, capricious, unfair or discriminatory;
• 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;
• or was taken in a biased manner;
• whether the employer failed to apply its mind to the promotion of the employee;
• or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
32. In this case and in more recent cases the courts have clarified the test to be that of fairness. It is clear from the submissions of the Respondent that it failed to meet its own standard regarding minimum requirements for the post, and the conduct was both arbitrary and inconsistent ,in that the successful candidate was not excluded from the sifting process, but who was shortlisted, interviewed and selected, had less years of experience then the applicant who was not afforded the opportunity to fairly compete for the post.
33. In this case the fairness of the selection process lay in the screening of all candidates against the set requirements in a similar approach and this was not done.
34. On this basis I find that the applicant was unfairly treated. Section 194(4) of the Act provides that compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances.
35. In the light of the above and all arguments advanced I find that the Respondent committed an unfair labour practice by sifting out the Applicant’s application when she applied for a position. The above circular was clear in this regard.
36. Furthermore, the Respondent failed to apply its own policies when shortlisting was done. I am of the view that the Applicant demonstrated that she was not given a fair opportunity to compete for the position she applied for.
37. The Applicant sought compensation as remedy.
38. I find that the Respondent committed an unfair labour practice by sifting out the Applicant’s application when she applied for a position and denied her a chance to compete for a position that she qualified for. Moreover, I find that the Respondent failed to apply its own policies when it dealt with the Applicant’s application and therefore prejudiced the Applicant to compete for the position. The prejudice to the Applicant was material. In the premise I render the following award:
AWARD
39. I find that the Respondent committed an unfair labour practice in respect of the Applicant, Ms. Norma Ophelia De La Rosa.
40. The Respondent, Department of Education Eastern Cape Province is ordered to pay Ms N.O. De La Rosa the sum of R35 300.00 times four months =R141 200.00 which is equivalent to four-months’ salary.
41. Payment of the amount referred to in paragraph 40 must be affected by paying the said amount into Ms Norma Ophelia De La Rosa's bank account.
42. The payment referred to in paragraph 40 is to be paid by no later than 27 November 2019.
Signature:
Commissioner:Theresa Malgas-Senye
Sector: ELRC