PSES980-18/19FS
PSES980-18/19FS
Award Date:
4 November 2019
Case Number: PSES980-18/19FS
Province: Free State
Applicant: SADTU obo Taje, AS
Respondent: 1st Respondent Department of Education Free State and 2nd Respondent ML Lebitso
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: ELRC Boardroom of the Education Resource Centre at Fezile Dabi Education District in Kroonstad.
Award Date: 4 November 2019
Arbitrator: Dr. GC. Van Der Berg
Case No: PSES980-18/19FS
In the matter between
SADTU obo Taje, AS Applicant
and
Department of Education-Free State First Respondent
ML Lebitso Second Respondent
PANELLIST: Dr. GC. Van Der Berg
Award: Finalized on 4 November 2019
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing took place on the 29th of July 2019, the 19th of September 2019, and the 24th of October at the ELRC Boardroom of the Education Resource Centre at Fezile Dabi Education District in Kroonstad. The proceedings were both digitally and manually recorded. The applicant, Tale AS, was represented by HT Mohlomi, an Official of SADTU. The respondent, Department of Education-Bloemfontein-Free State, was represented by Thulo Tsunke, Labour Relations Officer.
Issue to be decided
2. The applicant referred an unfair labour practice dispute regarding promotion in respect of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended. The arbitration proceeding concerned the alleged Unfair Labour Practice by the respondent as it relates to the non-promotion of the applicant to the advertised position of Deputy Principal at DR Sello Primary School at a post level 3 (302). The successful candidate, ML Lebitso, was joined with the consent of all parties as second respondent to the dispute.
3. I am required to determine whether or not the first respondent committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2) (a) of the LRA by:
a. Non-appointing of the applicant during the first round of interviews and appointing the 2nd respondent in preference to the applicant during the second round of interviews;
b. Whether or not the applicant was recommended for promotion for the Deputy Principal post by the School Governing Body;
c. Whether the nullification of the of the first process was legal as well as the non-notification of the applicant that he was unsuccessful;
d. Whether or not the applicant should have been appointed instead of the 2nd respondent;
4. In terms of appropriate relief in the event that I find that the first respondent committed an ULP:
a. Whether the appointment of the 2nd respondent must be set aside and the applicant to be appointed in the position as Deputy Principal;
b. Alternatively whether the applicant should be appointed the post of Deputy Principal in any school in the Fezile Dabi District.
Background to the Dispute
5. The applicant was employed as an educator since 1985 and is currently employed as a Head of Department at the Kgabareng Secondary School.
6. Both the applicant and the second respondent applied for the position of Deputy Principal at DR Sello Primary School post number 302
7. The applicant was shortlisted by the interview panel and the reasons given for not being appointed, as indicated on page 1 of bundle “A”, was that he allegedly had not 4 (four) years’ management experience as well as the fact that he did not have primary school experience.
8. The applicant was shortlisted together with 4 (four) other candidates, which included the 2nd respondent and was interviewed for the abovementioned position by the interview panel as selected by the school governing body (SGB). He was not recommended by the SGB for the position and the 2nd respondent, ML Lebitso, was then appointed in the abovementioned position after the interviews and recommendation process was redone.
9. The parties did present opening statements and the SADTU and the first respondent presented written closing statements, as agreed, on or before the 31st of October 2019. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
10. All parties submitted bundles of documents. The bundle of the applicant was marked as “A” pages 1-69. The bundles of the first and second respondents were marked as “R” pages 1-66 and “B” pages 1-4. Both parties did not dispute the authenticity of the respective bundles.
11. * As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The Applicant, AS Taje, HOD at Kgabareng Secondary School, after having been sworn in, testified as follows:
12. He was employed as the Head of Department at the Kgabareng Secondary School. He is in possession of a Senior Primary Teachers Diploma and has 22 (twenty two) years’ experience in education. He applied for the Deputy Principal position in 2018 on a post level 3. He was shortlisted and he received a written invitation to attend the interviews. After the interviews, he did not receive any communication that informed him that he was unsuccessful.
13. On page 9 it can be seen that SADTU addressed a letter on the 22nd of January 2019 to the Fezile Dabi Districts Dispute Prevention Committee and DR Sello Primary School about the dissatisfaction of the applicant about the recruitment process of the mentioned schools (Vacancy list 2 of 2018). The first paragraph stated as follows: “The abovementioned teacher formation would like to raise and register its dissatisfaction about the recruitment processes of the above posts”. The respective School Governing Bodies conducted the process of both shortlisting and interviews through their mandated panels, which made clear recommendations to the SGB. These recommendations were also ratified by the respective structures. The same recommendations were also submitted to the department for appointments to be effected where possible. On the 17th of January 2019, we observed the invitations for the shortlisting of the same posts, which were finalised. We therefore request the intervention of the Dispute Prevention Committee in line with the Free State Education Labour Council Collective Agreement 1 of 2012 (Part 7)”. After this letter no feedback was received.
14. He was unsuccessful and he saw the same process was taken place at Sasolburg for the second round. He was not informed that he would not be part of the second process. The position was not filled in 2018, and he did not receive an invitation to be shortlisted for the second round on the 17th of January 2019.
15. The applicant testified that he never received the response as can be seen on page 29 of bundle “R”. The letter dated the 6th of December 2018, was addressed to Mr Shasha, the Regional Secretary of SADTU, Northern Free State Region and not to him. It stated that: “Based on my analysis and consideration of your appeal, I therefore opt to differ with you on the following; Deputy Principal Post (302): the recommended candidate did not meet the two criterions, one candidate only meet one criteria”. It was further stated that to resolve this process altogether from shortlisting to interviews it must be rescheduled and a neutral panel will conduct the process.
16. On page 13 of bundle “A” it states that administrative action means any decision taken, or any failure to take a decision by on organ of state, when exercising a power in terms of the Constitution or a provincial constitution. He stated that the Department did not take any action regarding his promotion as he was shortlisted and recommended by the panel to be appointed, but was not appointed. He was not informed and shortlisted for the second round where the 2nd respondent was appointed
17. He read the paragraph on page 17 of bundle “A” which states; “The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action”. According to the applicant the Department of Education did not adhere to 90 days as stated.
18. He referred to the second process and stated that the Head of the Department of Education (HOD) must establish an interview panel in accordance with pages 1-3 in bundle “R”. The HOD was not involved on any of the mentioned pages. The HOD is the one to establish the panel and recommendations must be send to him. On page 44 of bundle “A” it states at point 4.5 that; “In case there are problems and after consultations with the school governing body, the Head of Department (SG) may appoint an independent interviewing committee for recommendation of a suitable candidate in terms of this resolution”. The applicant stated that it was not done in line with the aforementioned as the SGB must invite people for the interviews.
19. He confirmed that points 5.5.1, 5.5.2 and 5.5.3 on page 27 of bundle “A” never mentioned ratification after he read it. The HOD opted for another candidate and he did not see any part that allowed for nullification. He referred to page 33 of bundle “A” and said that the Dispute Resolution Committee was the same Committee that was referred in the appeal letter as on page 9. Their purpose was to ensure that complaints emanating from the recruitment process, that is shortlisting/interviews, conversions, management if excess educators and employer initiated transfers, are resolved speedily within the time frames of the Management Plan.
20. It came to his mind that the letter dated the 5th of December 2018 as can be seen on page 55 of bundle “A” was the same letter as his complaint on page 9. This letter stated that; “We therefore recommended that this process be nullified and start with the new resource person, who is not conflicted”. This was about a dissatisfaction about the shortlisting process of Moteka Secondary School. Within 5 (five) days an answer was received from the Department of Education. Page 55 represented a letter from the Department of Education to the SGB dated the 7th of December 2018 about the dispute regarding inconsistency in scoring candidates in the interviews of the principal posts at Tlotlanang Combined School. It stated that; “Based on the above information it is therefore, my decision as the District Director to recommend an Independent Panel in terms of section 4.5 (4.5.2) to redo the process to promote fairness”. In the case of the applicant it was also done but he was not shortlisted for the second round.
21. Page 58 of bundle “A” showed the shortlisted report dated the 22nd of October 2018. It showed the criteria as: (1) Relevant qualifications (Accommodating Secondary based educators); (2) Minimum of 4 (four) years as manager; (3) Acting as a deputy be considered. He met all three mentioned criteria and he was shortlisted and was the recommended candidate. On page 69 of the same bundle it stated that the Head of Department may appoint any suitable candidate on the list and in (g) if the Head of Department declines a recommendation, he or she must appoint a suitable candidate temporarily or re-advertise the post.
22. He knew all the people on the list as on page 55 of bundle “R” as they interviewed him as one of 5 (five) candidates. He compared document “B” and pages 1-3 on bundle “R” indicated that pages 1-3 was signed by the Senior Officials, but document “B” by other people. This was in line with the Collective Agreement (document “B”).
23. Under cross-examination he confirmed that the letter on page 9 was written by his Provincial Secretary and did not get any response. He was shown that the letter on page 10 was a response to the Secretary of SADTU. He stated that he followed the protocol by addressing the letter to the Dispute Prevention Committee and no to the HOD. He confirmed that he was not properly informed that he was not successful. He confirmed that as per page 17 of bundle “A” he did not receive a response within 90 days and he was never furnished with a reason. He was showed that a response was sent to the Regional Secretary of SADTU as can be seen on page 29 dated the 6th of December 2019. He said that the issue was never raised with him by the Regional Secretary of SADTU.
24. He agreed that he had not 4 (four) years’ managerial experience. He also confirmed the HOD declined the recommendation from the SGB. He was however not considered during the second round of shortlisting and interviews. It is stated on page 27 that the process can be nullified and on page 54 there is a recommendation that the process be nullified. The applicant agreed that it states on page 55 that SADTU recommended that the process be nullified.
25. Under re-examination he confirmed that in bundle “R” pages 1-3 the panel was approved by the Districts Director and in document “B” it was approved by the Chief Director. He stated that the HOD was the one to approve the panel according to the Collective Agreement. He confirmed that pages 1-3 of bundle “R” did not make reference to a neutral panel. He mentioned that on pages 6 and 7 of bundle “R” it states that regarding appointments which included promotions on post level 1 -3, the power can be delegated to the Director of the District.
The first witness of the Applicant, Jhabatha Fusi, Acting Principal, after having been sworn in, testified as follows:
26. He was the responsible person for giving direction to the recruitment process and that the content of the Collective Agreement was followed. The criteria set by the panel were: (1) Relevant primary qualifications; (2) 4 (four) years’ managerial experience; (3) Acting in a Deputy Principal position. There were 5 (five) shortlisted candidates and the panel recommended the applicant as the number 1 (one) candidate.
27. His recommendations were taken to the District Office and he left everything to the school. The applicant met all the required criteria to be appointed in the position, and there was no objection from the panel, and the unions SADTU and NAPTOSA. The panel consisted of the Principal, two teachers, himself and union representatives. The panel can be seen on page 55 of bundle “R”. The aplicant was never appointed and the position it was again advertised.
28. On page 12 of the same bundle it can be seen that the panel motivation after interviews dated the 28th of January 2019, recommended the second respondent for promotion and the first paragraph stated as follows; “The neutral panel for the above mentioned primary school (DR Sello) agrees with the ranking of the panel and recommended Lebitso M.L, after the panel has reported back on the interviews conducted on the 28th of January 2019. She showed knowledge capability, leadership, skill and confidence to take the school to the next level through”.
29. The selection criteria for the position of Deputy Principal was agreed on as can be seen on page 26 of bundle “R” for the first process, and the first candidate was not ML Libitso, but the applicant who was recommended as the first candidate. He knew about the invitation letters that was sent out as can be seen on page 32, but he did not agree with the written criteria on page 27. After he prepared and made the recommendations he was not further consulted.
30. Under cross-examination he stated that he was the Principal at his school and he had 5 (five) years’ experience in that position. He signed the confidentiality clause and was subpoena by the Union to come and testify in this arbitration. He agreed that the correct criteria appeared on pages 26 and 27 of bundle “R”. He stated that the applicant had 2 (two) years’ experience in a management position. The applicant has currently 8 (eight) years’ experience in a Secondary School and no experience in a primary school and the witness confirmed that he was not supposed to be shortlisted. He agreed that he possibly made a mistake by shortlisting the applicant and he was not aware of the dispute that was raised on the same day or the day after the interviews.
31. In both cases at his school the Department intervened as in one case his brother applied for a position. He further agreed that in both cases a person from the Secondary School was not appointed. He agreed that the 4 (four) years primary school experience was highlighted as criteria for promotion.
32. Under re-examination he agreed that the applicant met the criteria on the day of the interviews and he had the primary qualifications. He was acting in the capacity of Deputy Principal as stated on his CV. He confirmed that he never saw pages 26 and 27 as it was taken at the school. The applicant was never appointed as the Department of Education has the right to intervene.
The second witness of the Applicant, Dimo Hendrik Rapuleng, Teacher and Regional Secretary of SADTU, after having been sworn in testified as follows:
33. During the first process of the Deputy Principal position his role was observer mandated by the Union. He attended two sessions and during the first session the SGB panel met. The Resource person plus one other observer was aware of the criteria that was set by the panel. He clearly understood the criteria as: (1) relevant qualifications; (2) Experience as a manager; and (3) acting as a Deputy Principal. The relevant qualifications were further qualified as primary qualifications in secondary schools.
34. Page 58 of bundle “A” showed the shortlisted report dated the 22nd of October 2018. It showed the criteria as: (1) Relevant qualifications (Accommodating Secondary based educators); (2) Minimum of 4 (four) years as manager; (3) Acting as a deputy be considered. He stated that there are no difference between what he explained and this document. He stated that he was the author of this document without any date and signature. Under cross-examination he stated that he was not asked by anyone to draft this document. This criteria was drawn up by the panel during the first process. ML Lebitso, the applicant and three other candidates were shortlisted and the applicant met all the criteria as on page 58.
35. During the second session the shortlisted candidates were called in for interviews, they were interviewed and evaluated and the applicant scored the highest points and ML Lebitso was the second candidate. The scores were presented by the Resource person and he took the panel through the process. The panel consolidated their recommendation for finality. In the recommendation it was indicated that the applicant was the first candidate. The panel and the observers agreed to all that was presented and they as observers played a neutral role. He left the process and the panel were to report to the SGB. He stated that the criteria on pages 26 of bundle “R” are not the same as what he presented. He stated that he is the present Regional Secretary and not Sasha and he never saw the document sent to the Union as can be seen on pages 29 of the bundle “R”.
36. Under cross-examination he stated that the position of the applicant in the SADTU was one of Branch Secretary. When it was put to him that the applicant did not have 4 (four) years’ of managerial experience, he said that the CV was checked and that was the information obtained from the CV. He did not answer when he was asked when the applicant was appointed as the head of department. He stated further he last saw the CV on the day of the shortlisting. He agreed that for the process to be completed the candidates list and criteria on pages 26 in bundle “R” and page 58 in bundle “A” must be unified. He stated that whoever made the changes on page 26 must be traced as the applicant had 4 (four) years’ managerial experience. He was not part of the meeting with the SGB as it was the responsibility of the Principal, the Resource person and another person to report to the SGB and got approval. He stated that the applicant went to the interview based on the criteria determined by the panel.
The third witness of the Applicant, Michael Masala Setlaba, Teacher and additional member of the SGB, after having been sworn in testified as follows:
37. He stated that he was part of the panel who shortlisted the candidates for the Deputy Principal position and he was responsible for the scoring. The applicant, the second respondent and three other candidates were shortlisted by the panel. The criteria were: (1) Primary School qualifications and catering for candidates at the Secondary Schools as well; (2) Four years’ experience as a manager-HOD Deputy Principal or Principal. The Principal of the school was used to calculate the years of management experience. The applicant was acting as a Subject Head and therefore he had four years’ management experience.
38. He stated that the applicant has a primary school qualification and the chairperson of the panel was Sebetwane. The Principal did not raise any objection against the 4 (four) years management experience of the applicant. The applicant scored the most points in the interview and he was the preferred candidate and it was handed over to the Principal who was supposed to get approval from the SGB. A tele-conference was arranged by Mr Chuta with the SGB and he was furious and said that the correct criteria were not used to select the shortlisted candidates. He said he will take his own decision. He sent another official with the surname of Tsabalala to a meeting with the SGB to inform them about the outcome of the interviews. The SGB was instructed by Mr Chuta to vote that either the 2nd candidate must be the first candidate or the process must be abandoned. The results of the voting by the SGB was four votes in favour of replacing the first candidate with the second candidate and one vote against it. Mr Chuta decided to perform another interview session on top of the first one and the second respondent was appointed.
39. Under cross-examination he stated that in the process of appointing a person in a job the SGB must approve the recommendations of the panel. He admitted that the SGB did make a recommendation about the appointment of the applicant, but his appointment never happened. He was not aware that there were two meeting arranged with the SGB but a quorum could not be formed. Therefore the SGB never made a recommendation to the District about the appointment of the applicant. He further admitted that the applicant was never appointed as an HOD at a primary school and therefore did not have the four years’ management experience. The applicant was a Subject Head since 2017. He did not commend when he was showed that the SGB requested the District to take over the process.
Respondent’s evidence and argument
The first witness of the Respondent, Michael Tshabalala, Deputy Director Human Resources at Fezile Dabi District, after having been sworn in, testified as follows:
40. The positions were advertised for one Deputy Principal and two Head of Departments at DR Sello Primary School. The closing date was August 2018. The applications were received and this school, DR Sello Primary School, were also instructed how to complete the process and handed the approved recommendations over to the HOD. From the applications the 5 (five) candidates were shortlisted for the Deputy Principal position. They were invited for interviews and interviewed by the interview panel and recommendations were supposed to be made to the SGB. The recommendation was then supposed to go to the SGB of the school and after approval it was supposed to be handed over to the District HOD. The successful candidate was supposed to report for duty on the 1st of December 2018. This process was supposed to be completed over a period of three months.
41. All the schools run the whole process and DR Sello Primary School was left behind. The witness found out what happened and the Principal said that the SGB did not meet to approve the recommendations made by the interview panel. He arranged with the Principal to get the SGB together and a meeting was arranged. During the meeting he was told that after two attempts they could not get a quorum. He had to go and assisted them to get together to make a recommendation. In the meantime the Principal already presented the file to the District Director. File went back to the HR Department and they picked up errors on the file. The witness went back to the school and the Principal called to find out when the SGB will be available to find out what was the problem the SGB did not sign off the recommendations made. It was not yet done.
42. During a meeting with the SGB the witness was the chairperson. The reason for the default during the first process was that some of the shortlisted candidates did not meet the criteria. The criteria must be certified which the SGB. The criteria for the position of Deputy Principal can be seen on page 40 of bundle “R”. The criteria were: (1) Candidate with a primary experience; (2) Management experience (Acting as Deputy Principal will be an added advantage); and (3) Minimum of 4 years in Management. The outcome of the shortlisting must be 5 (five) candidates. Candidate ML Lebitso met all the requirements but the applicant has no primary school experience as well as only 2 (two) years in Management. The only other candidate that met the prescribed criteria was ZS Mehlo. These shortlisting was done with no person in mind and the criteria must be approved objectively and certified in the presence of the observers.
43. The panel was properly trained and the role of the observers were clearly spelled out, but the panel did not properly followed the procedure as the observers was not given the final list of 5 (five) candidates. When the criteria were not followed the SGB and the District Officer checked it before the HOD can sign it off. The Human Resources was responsible for the quality assurance process. There was no recommendations form the SGB and there were discrepancies on the file and the process was never finalized. The recommended candidate was not supposed to be shortlisted according to the criteria. There was then engagement between the school and himself and permission was requested to appoint the second choice.
44. On pages 28 and 29 of bundle “R” dated the 6th of December 2018, the District Director wrote a letter to both the Unions, who had observers as part of the interview panel, the following; “School Governing Body recommendation for appointments on the three posts-Deputy Principal and two HOD’s has been received and I have made my own screening and observations over your submissions and deviation for appointments of second candidates for all the three posts. Based on my analysis and considerations of your appeal I therefore opt to differ with you on the following: (1) The SGB show indecisiveness to appoint the right persons for their school in these three posts; (2) The criteria set by the panel did not reflect understanding of the panel towards the school profile; (3) The deviation requested by the SGB to appoint second candidates in all the three posts can be reasonable and can be supported by prescripts, however it cannot be accepted with such discrepancies, this will be contrary to the guidelines of Resolution 1 of 2012; and Reference to Quality Assurance Outcome the following were found regarding the Deputy Principal Post (302); the recommended candidate did not meet the two criteria, one candidate only meet one criteria. It is therefore based on the above information which was brought to my attention from the SGB presentation for their recommendations and Quality Assurance Outcomes, that I instructed for this process to be rescheduled from shortlisting to interviews and be conducted by a neutral panel which I will constitute to run this process for the best interest of our learners in this school, in support to the SGB focus to improve quality teaching in this school”.
45. The SGB was fully aware of the independent panel and they asked for help. The request was approved on the 16th of January 2019 as can be seen on pages 2 to 4 in bundle “B”. The power to appoint such an independent panel vested in the Superintendent General. The powers were delegated to the Principal and above. During the process of the Deputy Principal post, the Unions were all the way present as observers. The HOD remain the employer with delegated powers. The filling of post levels 1-3 was delegated to the District Directors and above and the Superintendent General Education have the delegated authority to approve positions to be filled. The position of the Deputy Principal was a Post level 3 within the power of the District Director.
46. Under cross-examination he confirmed that he did not receive any recommendation for the process of the Deputy Principal. He agreed that he received recommendation for the second round namely the 2nd respondent to be appointed. He assessed the criteria for this position as the file was brought to him. He confirmed that Human Resources are responsible for the Quality Assurance outcomes of each position. He agreed that points 4.4.2 and 4.4.4 on page 43 of bundle “A” did not refer to certification, but it explained the role of the observers as already explained. They must stop the process when it did not comply with the Resolution. He confirmed that the SGB never confirmed the first process.
47. He confirmed that page 45 to 47 in bundle “R” was a summary of the discussion for the interview with the second respondent. Page 12 was the neutral panel’s motivation for interviews on the 28th of January 2019 for the position of Deputy Principal. The neutral panel for DR Sello Primary School agreed with the ranking of the panel and recommended ML Lebitso, after the panel has reported back on the interviews conducted. The witness agreed that the HOD was engaged in the second process. He stated that the letter on page 51 of bundle “R” who was addressed to him by the school was received by him by hand. In this letter they confirmed that the position of the Deputy Principal can be rescheduled and a neural panel appointed.
48. He further agreed that the applicant was not informed within eight weeks that he was not successful as the first process never came to a conclusion. He further agreed that he informed the stakeholders and gave adequate reasons for the administrative actions taken by him. He confirmed that the invitation to the shortlisted candidates as on page 8 of bundle “R” was not send out by the school but by the Department of Education in the Free state. He stated that nobody declined the recommendations as on page 26 of bundle “R” as it was not done as prescribed. The candidate shortlisted in the first round was not supposed to be shortlisted. Only when recommendations were signed it was approved recommendations. In this case it was not signed by the panel and the SGB.
49. Under re-examination he confirmed that Tabatha was not part of the SGB as he was the Resource person in the first panel for the position of Deputy Principal. He confirmed that there was no recommendation from the SGB during the first process. He received no recommendation that the applicant was the person to be appointed. He confirmed that both NAPTOSA and SADTU were informed of the outcome of the first process. The role of the observers was to see whether the process meet the compliance of the Resolution. He stated that the feedback that the applicant was the recommended applicant did not come from the panel.
The second witness of the Respondent, Tshidiso Setlaba, Principal of DR Sello School, after having been sworn in, testified as follows:
50. He referred to the Collective Agreement 1 of 2012 page 35 to 51 of bundle “A” where it states on page 44; “that the committee must ensure that the shortlisting criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution. The nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account”. The criteria mentioned was used to shortlisting the candidates. The scoresheets to be used appears on page 49. The panel had the criteria in terms how to shortlist. The criteria were: (1) Primary qualifications and primary experience; (2) Four years’ management experience; (3) Acting in a HOD or senior position. The SADTU representative had a query in terms of primary experience and he said the panel must shortlisted anybody who can assist the school. The witness was alone and he was overpowered by the rest of the panel who were quiet including Human Resources.
51. The applicant was not supposed to be shortlisted as his CV indicated that he had two years’ experience as a Subject Head. Only HOD, Deputy Principal and Principal positions qualifies as management experience. He also had no experience in primary education. After the interviews by the panel of the 5 (five) shortlisted candidates they must give feedback to the SGB with recommendation of the recommended candidate. The SGB must approve the recommendation in a meeting and then sent it to the District for processing. According to the witness they tried twice without success to set up a meeting with the required quorum. They did not manage to do so and therefore the recommendations by the panel was never approved by the SGB. They were three weeks outside the Management Plan and decided to send the whole file to the District.
52. Human Resources found discrepancies in the criteria and shortlisted candidates. District called the Panel and SGB to show the discrepancies and the SGB requested the District to intervene and the District decided to repeat the interviews under a new panel without the applicant on the shortlist. Under cross-examination the witness stated that his role was that he was a member of the panel. He stated the reason why the applicant was not appointed was due to the fact that he had no primary school experience and no relevant management experience. He did not meet the inherent needs of the post as he should have primary qualifications and experience. The applicant was shortlisted with two years’ irrelevant experience as a Subject Head at a secondary school. He was overpowered by the panel members after the SADTU member suggested that secondary school experience is accepted and the applicant must therefore also be shortlisted.
Closing arguments
53. Both the representatives of the applicant and the respondent sent written closing arguments by the 31st of October 2019 as agreed on the 24th of October 2019. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
54. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
55. In this arbitration I am firstly going to refer to Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations. Secondly I am going to refer to Free State Province Collective Agreement No 1 of 2012, Guidelines for Advertising and filling of Educator Posts at Institutions.
56. The Panellist is expected to determine whether the first respondent’s failure to promote the applicant was substantive unfair, meaning whether the applicant was not appointed despite being the best candidate given the skills he possesses, and a candidate that does not possess the same/similar skills was appointed. From a procedural aspect the Panellist must be satisfied that the applicant suffered prejudice during a recruitment and selection process for promotion post. Fairness requires an evaluation that is multidimensional. The fairness required in determination of an unfair labour practice must be fairness against both applicant and respondent.
57. I have enquired from the parties whether an appointment has been made in the post that the applicant contests. An appointment has been made and ML Lebitso has been joined as the second respondent to this arbitration process. She however did not testify at the arbitration, but was present on all the days.
58. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.
59. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes; it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful.
60. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. There is no general right to promotion. What employees do have is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision 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 promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of the discretion.
61. Where the applicant complains that another employee was promoted, he must show that: (1) he has the necessary skills; and (2) the person who was promoted does not possess the same or same level of skills. The Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The HOD is however not bound by the recommendations of the SGB and may deviate from their recommendations where there are sound reasons to do so. If the decision arrived at by the HOD is reasonable then it must stand.
62. The applicant needs to show that, but for the irregularity or unfairness, he would have been promoted to the position of Deputy Principal. This necessarily means that the applicant must show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of all the candidates who applied for the position.
63. The positions were advertised for one Deputy Principal and two Head of Departments at DR Sello Primary School. The closing date was August 2018. The applications were received and this school, DR Sello Primary School, were also instructed how to complete the process and handed the approved recommendations over to the HOD. From the applications the 5 (five) candidates were shortlisted for the Deputy Principal position. They were invited for interviews and interviewed by the interview panel and recommendations were supposed to be made to the SGB. The recommendation was then supposed to go to the SGB of the school and after approval it was supposed to be handed over to the District HOD. The successful candidate was supposed to report for duty on the 1st of December 2018. This process was supposed to be completed over a period of three months.
64. All the schools run the whole process and DR Sello Primary School was left behind. The first witness of the respondent found out what happened and the Principal said that the SGB did not meet to approve the recommendations made by the interview panel. He arranged with the Principal to get the SGB together and a meeting was arranged. During the meeting he was told that after two attempts they could not get a quorum. He had to go and assisted them to get together to make a recommendation. In the meantime the Principal already presented the file to the District Director. The file went back to the HR Department and they picked up errors on the file. The first witness of the respondent went back to the school and the Principal called to find out when the SGB will be available to find out why the SGB did not sign off the recommendations made by the panel.
65. There were no recommendations form the SGB and there were discrepancies on the file and the process was never finalized. The recommended candidate was not supposed to be shortlisted according to the criteria. There was then engagement between the school and the District Director and permission was requested to appoint the second choice.
66. The second witness of the respondent referred to the Collective Agreement 1 of 2012 page 35 to 51 of bundle “A” where it states on page 44; “that the committee must ensure that the shortlisting criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution. The nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account”. The criteria mentioned was used to shortlist the candidates. The scoresheets to be used appears on page 49. The Panel had the criteria in terms how to shortlist. The criteria were: (1) Primary qualifications and primary experience; (2) Four years’ management experience; (3) Acting in a HOD or senior position. The SADTU representative had a query in terms of primary experience and he said the panel must shortlisted anybody who can assist the school. The witness was alone and he was overpowered by the rest of the panel who were quiet including Human Resources.
67. The applicant was not supposed to be shortlisted as his CV indicated that he had two years’ experience as a Subject Head. Only HOD, Deputy Principal and Principal positions qualifies as management experience. He also had no experience in primary education. The recommendations by the panel was never approved by the SGB. They were three weeks outside the Management Plan and decided to send the whole file to the District.
68. Resources found discrepancies in the criteria and shortlisted candidates. District called the panel and SGB to show the discrepancies and the SGB requested the District to intervene and the District decided to repeat the interviews under a new panel without the applicant on the shortlist. The applicant did not meet the inherent needs of the post as he should have had primary qualifications and experience. The applicant was the first round shortlisted with two years’ irrelevant experience as a Subject Head at a secondary school.
69. On pages 28 and 29 of bundle “R” dated the 6th of December 2018, the District Director wrote a letter to both the unions, who had observers as part of the interview panel, the following: “Based on my analysis and considerations of your appeal I therefore opt to differ with you on the following: (1) The SGB show indecisiveness to appoint the right persons for their school in these three posts; (2) The criteria set by the panel did not reflect understanding of the Panel towards the school profile; (3) The deviation requested by the SGB to appoint second candidates in all the three posts can be reasonable and can be supported by prescripts, however it cannot be accepted with such discrepancies, this will be contrary to the guidelines of Resolution 1 of 2012; and Reference to Quality Assurance Outcome the following were found regarding the Deputy Principal Post (302); the recommended candidate did not meet the two criteria, one candidate only met one criteria. It is therefore based on the above information which was brought to my attention from the SGB presentation for their recommendations and Quality Assurance Outcomes, that I instructed for this process to be rescheduled from shortlisting to interviews and be conducted by a neutral panel which I will constitute to run this process for the best interest of our learners in this school, in support to the SGB focus to improve quality teaching in this school”.
70. The Districts Office intervened in terms of Collective Agreement no 1 of 2012 and appointed an independent committee. This was done after consultation with the SGB, Mr Setlaba (Principal) and Mr Tshabalala. Powers to appoint an independent panel are conferred to the District Director delegation of powers by the Head of Department (HOD) (See pages 7 and 8 of bundle “R”). No one was recommended by the SGB including both the applicant and the second respondent until the process was taken over by the Districts Office which started the process again from the shortlisting and interviewing process under a newly appointed interview panel in 2019. The applicant was not on this shortlisting as he did not meet the required criteria and they recommended the second respondent to the SGB and they approved her appointment in the position of Deputy Principal.
71. The representative of the respondent submitted that it was clear from the testimony of Mr Thabatha, witness of the applicant, that he was biased from the onset to shortlist and to ensure that the applicant was shortlisted and interviewed and appointed. Although he conceded that the applicant did have a primary qualification but lacked primary experience as he had being teaching at secondary school. He failed to look at the needs of the school but was held burdened to appoint an unsuitable person in this senior position.
72. The neutral panel for DR Sello Primary School agreed with the ranking of the panel and recommended ML Lebitso, after the panel has reported back on the interviews conducted. The second witness of the respondent agreed that the HOD was engaged in the second process. In a letter they confirmed that the position of the Deputy Principal can be rescheduled and a neural panel appointed.
73. The applicant testified that he never received the response as can be seen on page 29 of bundle “R”. The letter dated the 6th of December 2018, was addressed to Mr Shasha, the Regional Secretary of SADTU, Northern Free State Region and not to him. It stated that: “Based on my analysis and consideration of your appeal, I therefore opt to differ with you on the following; Deputy Principal Post (302): the recommended candidate did not meet the two criterions, one candidate only meet one criteria”. It was further stated that to resolve this process altogether from shortlisting to interviews it must be rescheduled and a neutral panel will conduct the process.
74. The applicant referred to the paragraph on page 17 of bundle “A” which states; “The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action”. According to the applicant the Department of Education did not adhere to 90 days as stated. The first respondent however did respond to the applicant as can be seen in paragraph 69 by addressing a letter to the Union Regional office. This was done within the prescribed 90 days. I find that the applicant was not informed that he was unsuccessful, but he was informed that the interview process will be redone.
75. The applicant agreed that he had not 4 (four) years’ managerial experience. He also confirmed the HOD declined the recommendation from the SGB. He was however not considered during the second round of shortlisting and interviews. It is stated on page 27 that the process can be nullified and on page 54 there is a recommendation that the process be nullified. The applicant agreed that it states on page 55 that SADTU recommended that the process be nullified. The first witness of the applicant stated that the applicant was never appointed as the Department of Education has the right to intervene.
76. The third witness of the applicant further admitted that the applicant was never appointed as an HOD at a primary school and therefore did not have the four years’ management experience. The applicant was a Subject Head since 2017. He did not comment when he was showed that the SGB requested the District to take over the process. He stated that nobody declined the recommendations as on page 26 of bundle “R” as it was not done as prescribed. The candidates shortlisted in the first round were not supposed to be shortlisted. Only when recommendations were signed it was approved recommendations. In this case it was not signed by the panel and the SGB.
77. The representative of the respondent submitted that the applicant, AS Taje, testified that he was shortlisted for a position of Deputy Principal at DR Sello Primary School in Viljoenskroon in the Fazile Dabi District, and he indeed attended the interviews and he was told that he was the preferred candidate by members of SADTU. He also failed to outline as whether the SGB recommended him to the District Director who was supposed to make the appointment. The applicant failed to prove that he was a better candidate than the second respondent and present incumbent ML Lebitso. He also failed to produce his CV to prove that he had more experience as a Head of Department for a period equivalent or exceeding 4 (four) years as stipulated in the shortlisting criteria. Mr TJ Setlaba, the Principal, indicated that he was in the interviews and he knew that the applicant had not 4 (four) years’ experience as a Head of Department at a primary school in a managerial position, as he was appointed as a Subject Head since 2017.
78. The representative of the applicant submitted that the unfair conduct by the respondent relating to the promotion of the applicant is informed by the following reasons: (1) The applicant was recommended for appointment of Deputy Principal of DR Sello Primary School; (2) He performed better than all other candidates in the first process of the interviews in terms of scores; (3) The meeting which was held at school voted for the second candidate to be appointed; (4) The school governing body was not consulted on the establishment of the independent panel; and (5) The Department of Education acted altra vires in many occasions in this process..
79. The representative if the applicant further submitted that both witnesses of the respondent made allegations that the applicant did not meet two criteria being management experience and primary school experience. However the issue of recommendation of the applicant was clearly corroborated by all witnesses of the applicant. The applicant became unsuccessful in the first interview process due to fabricated reasons provided. The respondent failed to inform him that he was unsuccessful. He referred to the case of Kimberley Junior School v The Head of the Northern Cape Education Department (278/08) [2009/ZASCA58] (28 May 2009). The Court held that the deviation by the Head of Education to appoint as per School Governing Body recommendations to be unconstitutional.
80. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post.
81. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
82. The representative of the applicant further submitted that the evidence led by both Mt Setlaba and Mr Tshabalala indicated that the process was mud by flaws and biasedness towards the applicant. Hence the District Management thought it would be in the interest of justice and fairness that the process should be restarted. Both the PAM document B 5.5.1 indicated that when the HOD consider the recommendations contemplated in paragraph B 5.4.13 he/she must before making an appointment ensure that the SGB has meet the requirements in paragraph B 5.4.7.4 which states; “that the procedure would ensure that the recommendations is not obtained through undue influence on members of the SGB”. There was a clear indication that there was an undue influence from SADTU on the SGB to ensure that the applicant was shortlisted and interviewed as indicated by the Principal. Paragraph B.5.4.8 and B 5.4.8.1 states that; “The interview panel must also consider the curriculum needs of the institution.
83. The conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. The applicant was not promoted as he did not have two of the criteria set for the position as Deputy Principal. He had not 4 (four) years’ managerial experience as Head of a Department or as Deputy Principal. He further has no experience in a primary school.
84. In terms of a fair procedure the first respondent must ensure that a fair process is followed. Even though relevant case law states that “One does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions…” (Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02 / 15349, [2006] JOL 17802 (W); also see Douglas Hoërskool & 'n ander v Premier, Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 1144I–1145I). It is very clear in the matter before me that in terms of the two criteria mentioned the applicant should not have been shortlisted as he did not have the relevant managerial experience as well as primary school experience. That was the reason he was not appointed and not put on the shortlist for the second round of interviews in January 2019. Then the second respondent was appointed as she met all the criteria, even in the first round of shortlisting and interviews in 2018.
85. Expressed somewhat differently, the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H). An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33). The applicant could not prove that he had 4 (four) years’ managerial experience as HOD, Deputy Principal or Principal. He only had 2 (two) years’ experience as Subject Head. Neither could he prove that he had primary school experience and he was put on the shortlist and interviewed by the involvement of the union member of SADTU on the Panel. Then secondary school experience was added to the criteria and the applicant was added and so-called recommended to the SGB.
86. A recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. That recommendation to the SGB never took place and the SGB never approved the candidate list with the applicant as number one candidate during the first round of interviews. Neither did the District Director and Hunan Resources approve the appointment of the applicant. The first process was indeed nullified and redone. The second respondent was then appointed in the position of Deputy Principal during the second round of interviews.
87. The applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the HOD was fair and that no Unfair Labour Practice was committed by the first respondent to appoint the second respondent and not the applicant.
88. In light of the above I make the following award.
AWARD
89. The first respondent did not commit an Unfair Labour Practice in the non-appointment of the applicant and the appointment of the 2nd respondent for the advertised position of Deputy Principal at DR Sello Primary School post (302).
90. There is no order as to costs
Signature:
Panelist: Gert van der Berg
Sector: Free State Department of Education
Province: Free State
Applicant: SADTU obo Taje, AS
Respondent: 1st Respondent Department of Education Free State and 2nd Respondent ML Lebitso
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: ELRC Boardroom of the Education Resource Centre at Fezile Dabi Education District in Kroonstad.
Award Date: 4 November 2019
Arbitrator: Dr. GC. Van Der Berg
Case No: PSES980-18/19FS
In the matter between
SADTU obo Taje, AS Applicant
and
Department of Education-Free State First Respondent
ML Lebitso Second Respondent
PANELLIST: Dr. GC. Van Der Berg
Award: Finalized on 4 November 2019
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing took place on the 29th of July 2019, the 19th of September 2019, and the 24th of October at the ELRC Boardroom of the Education Resource Centre at Fezile Dabi Education District in Kroonstad. The proceedings were both digitally and manually recorded. The applicant, Tale AS, was represented by HT Mohlomi, an Official of SADTU. The respondent, Department of Education-Bloemfontein-Free State, was represented by Thulo Tsunke, Labour Relations Officer.
Issue to be decided
2. The applicant referred an unfair labour practice dispute regarding promotion in respect of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended. The arbitration proceeding concerned the alleged Unfair Labour Practice by the respondent as it relates to the non-promotion of the applicant to the advertised position of Deputy Principal at DR Sello Primary School at a post level 3 (302). The successful candidate, ML Lebitso, was joined with the consent of all parties as second respondent to the dispute.
3. I am required to determine whether or not the first respondent committed an Unfair Labour Practice (hereinafter an ULP) in terms of Section 186 (2) (a) of the LRA by:
a. Non-appointing of the applicant during the first round of interviews and appointing the 2nd respondent in preference to the applicant during the second round of interviews;
b. Whether or not the applicant was recommended for promotion for the Deputy Principal post by the School Governing Body;
c. Whether the nullification of the of the first process was legal as well as the non-notification of the applicant that he was unsuccessful;
d. Whether or not the applicant should have been appointed instead of the 2nd respondent;
4. In terms of appropriate relief in the event that I find that the first respondent committed an ULP:
a. Whether the appointment of the 2nd respondent must be set aside and the applicant to be appointed in the position as Deputy Principal;
b. Alternatively whether the applicant should be appointed the post of Deputy Principal in any school in the Fezile Dabi District.
Background to the Dispute
5. The applicant was employed as an educator since 1985 and is currently employed as a Head of Department at the Kgabareng Secondary School.
6. Both the applicant and the second respondent applied for the position of Deputy Principal at DR Sello Primary School post number 302
7. The applicant was shortlisted by the interview panel and the reasons given for not being appointed, as indicated on page 1 of bundle “A”, was that he allegedly had not 4 (four) years’ management experience as well as the fact that he did not have primary school experience.
8. The applicant was shortlisted together with 4 (four) other candidates, which included the 2nd respondent and was interviewed for the abovementioned position by the interview panel as selected by the school governing body (SGB). He was not recommended by the SGB for the position and the 2nd respondent, ML Lebitso, was then appointed in the abovementioned position after the interviews and recommendation process was redone.
9. The parties did present opening statements and the SADTU and the first respondent presented written closing statements, as agreed, on or before the 31st of October 2019. Both parties were allowed to cross-examine and re-examine during the presentation of their evidence. For the sake of brevity the details of this will not all be repeated in the award, but it should not be construed that it was not considered.
Survey of evidence and argument
Documentary evidence.
10. All parties submitted bundles of documents. The bundle of the applicant was marked as “A” pages 1-69. The bundles of the first and second respondents were marked as “R” pages 1-66 and “B” pages 1-4. Both parties did not dispute the authenticity of the respective bundles.
11. * As noted previously the proceedings were digitally recorded therefore what appears hereunder constitutes a summary of the evidence deduced by the parties in so far as it is relevant for the purpose of this arbitration; it is by no means a minute of what transpired in the course of the proceedings. Section 138 of the Labour Relations Act provides in subsection (7) that within 14 days of the conclusion of the arbitration proceedings-(a) the commissioner must issue an arbitration award with brief reasons, signed by that commissioner. These follow below.
Applicant’s evidence and arguments
The Applicant, AS Taje, HOD at Kgabareng Secondary School, after having been sworn in, testified as follows:
12. He was employed as the Head of Department at the Kgabareng Secondary School. He is in possession of a Senior Primary Teachers Diploma and has 22 (twenty two) years’ experience in education. He applied for the Deputy Principal position in 2018 on a post level 3. He was shortlisted and he received a written invitation to attend the interviews. After the interviews, he did not receive any communication that informed him that he was unsuccessful.
13. On page 9 it can be seen that SADTU addressed a letter on the 22nd of January 2019 to the Fezile Dabi Districts Dispute Prevention Committee and DR Sello Primary School about the dissatisfaction of the applicant about the recruitment process of the mentioned schools (Vacancy list 2 of 2018). The first paragraph stated as follows: “The abovementioned teacher formation would like to raise and register its dissatisfaction about the recruitment processes of the above posts”. The respective School Governing Bodies conducted the process of both shortlisting and interviews through their mandated panels, which made clear recommendations to the SGB. These recommendations were also ratified by the respective structures. The same recommendations were also submitted to the department for appointments to be effected where possible. On the 17th of January 2019, we observed the invitations for the shortlisting of the same posts, which were finalised. We therefore request the intervention of the Dispute Prevention Committee in line with the Free State Education Labour Council Collective Agreement 1 of 2012 (Part 7)”. After this letter no feedback was received.
14. He was unsuccessful and he saw the same process was taken place at Sasolburg for the second round. He was not informed that he would not be part of the second process. The position was not filled in 2018, and he did not receive an invitation to be shortlisted for the second round on the 17th of January 2019.
15. The applicant testified that he never received the response as can be seen on page 29 of bundle “R”. The letter dated the 6th of December 2018, was addressed to Mr Shasha, the Regional Secretary of SADTU, Northern Free State Region and not to him. It stated that: “Based on my analysis and consideration of your appeal, I therefore opt to differ with you on the following; Deputy Principal Post (302): the recommended candidate did not meet the two criterions, one candidate only meet one criteria”. It was further stated that to resolve this process altogether from shortlisting to interviews it must be rescheduled and a neutral panel will conduct the process.
16. On page 13 of bundle “A” it states that administrative action means any decision taken, or any failure to take a decision by on organ of state, when exercising a power in terms of the Constitution or a provincial constitution. He stated that the Department did not take any action regarding his promotion as he was shortlisted and recommended by the panel to be appointed, but was not appointed. He was not informed and shortlisted for the second round where the 2nd respondent was appointed
17. He read the paragraph on page 17 of bundle “A” which states; “The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action”. According to the applicant the Department of Education did not adhere to 90 days as stated.
18. He referred to the second process and stated that the Head of the Department of Education (HOD) must establish an interview panel in accordance with pages 1-3 in bundle “R”. The HOD was not involved on any of the mentioned pages. The HOD is the one to establish the panel and recommendations must be send to him. On page 44 of bundle “A” it states at point 4.5 that; “In case there are problems and after consultations with the school governing body, the Head of Department (SG) may appoint an independent interviewing committee for recommendation of a suitable candidate in terms of this resolution”. The applicant stated that it was not done in line with the aforementioned as the SGB must invite people for the interviews.
19. He confirmed that points 5.5.1, 5.5.2 and 5.5.3 on page 27 of bundle “A” never mentioned ratification after he read it. The HOD opted for another candidate and he did not see any part that allowed for nullification. He referred to page 33 of bundle “A” and said that the Dispute Resolution Committee was the same Committee that was referred in the appeal letter as on page 9. Their purpose was to ensure that complaints emanating from the recruitment process, that is shortlisting/interviews, conversions, management if excess educators and employer initiated transfers, are resolved speedily within the time frames of the Management Plan.
20. It came to his mind that the letter dated the 5th of December 2018 as can be seen on page 55 of bundle “A” was the same letter as his complaint on page 9. This letter stated that; “We therefore recommended that this process be nullified and start with the new resource person, who is not conflicted”. This was about a dissatisfaction about the shortlisting process of Moteka Secondary School. Within 5 (five) days an answer was received from the Department of Education. Page 55 represented a letter from the Department of Education to the SGB dated the 7th of December 2018 about the dispute regarding inconsistency in scoring candidates in the interviews of the principal posts at Tlotlanang Combined School. It stated that; “Based on the above information it is therefore, my decision as the District Director to recommend an Independent Panel in terms of section 4.5 (4.5.2) to redo the process to promote fairness”. In the case of the applicant it was also done but he was not shortlisted for the second round.
21. Page 58 of bundle “A” showed the shortlisted report dated the 22nd of October 2018. It showed the criteria as: (1) Relevant qualifications (Accommodating Secondary based educators); (2) Minimum of 4 (four) years as manager; (3) Acting as a deputy be considered. He met all three mentioned criteria and he was shortlisted and was the recommended candidate. On page 69 of the same bundle it stated that the Head of Department may appoint any suitable candidate on the list and in (g) if the Head of Department declines a recommendation, he or she must appoint a suitable candidate temporarily or re-advertise the post.
22. He knew all the people on the list as on page 55 of bundle “R” as they interviewed him as one of 5 (five) candidates. He compared document “B” and pages 1-3 on bundle “R” indicated that pages 1-3 was signed by the Senior Officials, but document “B” by other people. This was in line with the Collective Agreement (document “B”).
23. Under cross-examination he confirmed that the letter on page 9 was written by his Provincial Secretary and did not get any response. He was shown that the letter on page 10 was a response to the Secretary of SADTU. He stated that he followed the protocol by addressing the letter to the Dispute Prevention Committee and no to the HOD. He confirmed that he was not properly informed that he was not successful. He confirmed that as per page 17 of bundle “A” he did not receive a response within 90 days and he was never furnished with a reason. He was showed that a response was sent to the Regional Secretary of SADTU as can be seen on page 29 dated the 6th of December 2019. He said that the issue was never raised with him by the Regional Secretary of SADTU.
24. He agreed that he had not 4 (four) years’ managerial experience. He also confirmed the HOD declined the recommendation from the SGB. He was however not considered during the second round of shortlisting and interviews. It is stated on page 27 that the process can be nullified and on page 54 there is a recommendation that the process be nullified. The applicant agreed that it states on page 55 that SADTU recommended that the process be nullified.
25. Under re-examination he confirmed that in bundle “R” pages 1-3 the panel was approved by the Districts Director and in document “B” it was approved by the Chief Director. He stated that the HOD was the one to approve the panel according to the Collective Agreement. He confirmed that pages 1-3 of bundle “R” did not make reference to a neutral panel. He mentioned that on pages 6 and 7 of bundle “R” it states that regarding appointments which included promotions on post level 1 -3, the power can be delegated to the Director of the District.
The first witness of the Applicant, Jhabatha Fusi, Acting Principal, after having been sworn in, testified as follows:
26. He was the responsible person for giving direction to the recruitment process and that the content of the Collective Agreement was followed. The criteria set by the panel were: (1) Relevant primary qualifications; (2) 4 (four) years’ managerial experience; (3) Acting in a Deputy Principal position. There were 5 (five) shortlisted candidates and the panel recommended the applicant as the number 1 (one) candidate.
27. His recommendations were taken to the District Office and he left everything to the school. The applicant met all the required criteria to be appointed in the position, and there was no objection from the panel, and the unions SADTU and NAPTOSA. The panel consisted of the Principal, two teachers, himself and union representatives. The panel can be seen on page 55 of bundle “R”. The aplicant was never appointed and the position it was again advertised.
28. On page 12 of the same bundle it can be seen that the panel motivation after interviews dated the 28th of January 2019, recommended the second respondent for promotion and the first paragraph stated as follows; “The neutral panel for the above mentioned primary school (DR Sello) agrees with the ranking of the panel and recommended Lebitso M.L, after the panel has reported back on the interviews conducted on the 28th of January 2019. She showed knowledge capability, leadership, skill and confidence to take the school to the next level through”.
29. The selection criteria for the position of Deputy Principal was agreed on as can be seen on page 26 of bundle “R” for the first process, and the first candidate was not ML Libitso, but the applicant who was recommended as the first candidate. He knew about the invitation letters that was sent out as can be seen on page 32, but he did not agree with the written criteria on page 27. After he prepared and made the recommendations he was not further consulted.
30. Under cross-examination he stated that he was the Principal at his school and he had 5 (five) years’ experience in that position. He signed the confidentiality clause and was subpoena by the Union to come and testify in this arbitration. He agreed that the correct criteria appeared on pages 26 and 27 of bundle “R”. He stated that the applicant had 2 (two) years’ experience in a management position. The applicant has currently 8 (eight) years’ experience in a Secondary School and no experience in a primary school and the witness confirmed that he was not supposed to be shortlisted. He agreed that he possibly made a mistake by shortlisting the applicant and he was not aware of the dispute that was raised on the same day or the day after the interviews.
31. In both cases at his school the Department intervened as in one case his brother applied for a position. He further agreed that in both cases a person from the Secondary School was not appointed. He agreed that the 4 (four) years primary school experience was highlighted as criteria for promotion.
32. Under re-examination he agreed that the applicant met the criteria on the day of the interviews and he had the primary qualifications. He was acting in the capacity of Deputy Principal as stated on his CV. He confirmed that he never saw pages 26 and 27 as it was taken at the school. The applicant was never appointed as the Department of Education has the right to intervene.
The second witness of the Applicant, Dimo Hendrik Rapuleng, Teacher and Regional Secretary of SADTU, after having been sworn in testified as follows:
33. During the first process of the Deputy Principal position his role was observer mandated by the Union. He attended two sessions and during the first session the SGB panel met. The Resource person plus one other observer was aware of the criteria that was set by the panel. He clearly understood the criteria as: (1) relevant qualifications; (2) Experience as a manager; and (3) acting as a Deputy Principal. The relevant qualifications were further qualified as primary qualifications in secondary schools.
34. Page 58 of bundle “A” showed the shortlisted report dated the 22nd of October 2018. It showed the criteria as: (1) Relevant qualifications (Accommodating Secondary based educators); (2) Minimum of 4 (four) years as manager; (3) Acting as a deputy be considered. He stated that there are no difference between what he explained and this document. He stated that he was the author of this document without any date and signature. Under cross-examination he stated that he was not asked by anyone to draft this document. This criteria was drawn up by the panel during the first process. ML Lebitso, the applicant and three other candidates were shortlisted and the applicant met all the criteria as on page 58.
35. During the second session the shortlisted candidates were called in for interviews, they were interviewed and evaluated and the applicant scored the highest points and ML Lebitso was the second candidate. The scores were presented by the Resource person and he took the panel through the process. The panel consolidated their recommendation for finality. In the recommendation it was indicated that the applicant was the first candidate. The panel and the observers agreed to all that was presented and they as observers played a neutral role. He left the process and the panel were to report to the SGB. He stated that the criteria on pages 26 of bundle “R” are not the same as what he presented. He stated that he is the present Regional Secretary and not Sasha and he never saw the document sent to the Union as can be seen on pages 29 of the bundle “R”.
36. Under cross-examination he stated that the position of the applicant in the SADTU was one of Branch Secretary. When it was put to him that the applicant did not have 4 (four) years’ of managerial experience, he said that the CV was checked and that was the information obtained from the CV. He did not answer when he was asked when the applicant was appointed as the head of department. He stated further he last saw the CV on the day of the shortlisting. He agreed that for the process to be completed the candidates list and criteria on pages 26 in bundle “R” and page 58 in bundle “A” must be unified. He stated that whoever made the changes on page 26 must be traced as the applicant had 4 (four) years’ managerial experience. He was not part of the meeting with the SGB as it was the responsibility of the Principal, the Resource person and another person to report to the SGB and got approval. He stated that the applicant went to the interview based on the criteria determined by the panel.
The third witness of the Applicant, Michael Masala Setlaba, Teacher and additional member of the SGB, after having been sworn in testified as follows:
37. He stated that he was part of the panel who shortlisted the candidates for the Deputy Principal position and he was responsible for the scoring. The applicant, the second respondent and three other candidates were shortlisted by the panel. The criteria were: (1) Primary School qualifications and catering for candidates at the Secondary Schools as well; (2) Four years’ experience as a manager-HOD Deputy Principal or Principal. The Principal of the school was used to calculate the years of management experience. The applicant was acting as a Subject Head and therefore he had four years’ management experience.
38. He stated that the applicant has a primary school qualification and the chairperson of the panel was Sebetwane. The Principal did not raise any objection against the 4 (four) years management experience of the applicant. The applicant scored the most points in the interview and he was the preferred candidate and it was handed over to the Principal who was supposed to get approval from the SGB. A tele-conference was arranged by Mr Chuta with the SGB and he was furious and said that the correct criteria were not used to select the shortlisted candidates. He said he will take his own decision. He sent another official with the surname of Tsabalala to a meeting with the SGB to inform them about the outcome of the interviews. The SGB was instructed by Mr Chuta to vote that either the 2nd candidate must be the first candidate or the process must be abandoned. The results of the voting by the SGB was four votes in favour of replacing the first candidate with the second candidate and one vote against it. Mr Chuta decided to perform another interview session on top of the first one and the second respondent was appointed.
39. Under cross-examination he stated that in the process of appointing a person in a job the SGB must approve the recommendations of the panel. He admitted that the SGB did make a recommendation about the appointment of the applicant, but his appointment never happened. He was not aware that there were two meeting arranged with the SGB but a quorum could not be formed. Therefore the SGB never made a recommendation to the District about the appointment of the applicant. He further admitted that the applicant was never appointed as an HOD at a primary school and therefore did not have the four years’ management experience. The applicant was a Subject Head since 2017. He did not commend when he was showed that the SGB requested the District to take over the process.
Respondent’s evidence and argument
The first witness of the Respondent, Michael Tshabalala, Deputy Director Human Resources at Fezile Dabi District, after having been sworn in, testified as follows:
40. The positions were advertised for one Deputy Principal and two Head of Departments at DR Sello Primary School. The closing date was August 2018. The applications were received and this school, DR Sello Primary School, were also instructed how to complete the process and handed the approved recommendations over to the HOD. From the applications the 5 (five) candidates were shortlisted for the Deputy Principal position. They were invited for interviews and interviewed by the interview panel and recommendations were supposed to be made to the SGB. The recommendation was then supposed to go to the SGB of the school and after approval it was supposed to be handed over to the District HOD. The successful candidate was supposed to report for duty on the 1st of December 2018. This process was supposed to be completed over a period of three months.
41. All the schools run the whole process and DR Sello Primary School was left behind. The witness found out what happened and the Principal said that the SGB did not meet to approve the recommendations made by the interview panel. He arranged with the Principal to get the SGB together and a meeting was arranged. During the meeting he was told that after two attempts they could not get a quorum. He had to go and assisted them to get together to make a recommendation. In the meantime the Principal already presented the file to the District Director. File went back to the HR Department and they picked up errors on the file. The witness went back to the school and the Principal called to find out when the SGB will be available to find out what was the problem the SGB did not sign off the recommendations made. It was not yet done.
42. During a meeting with the SGB the witness was the chairperson. The reason for the default during the first process was that some of the shortlisted candidates did not meet the criteria. The criteria must be certified which the SGB. The criteria for the position of Deputy Principal can be seen on page 40 of bundle “R”. The criteria were: (1) Candidate with a primary experience; (2) Management experience (Acting as Deputy Principal will be an added advantage); and (3) Minimum of 4 years in Management. The outcome of the shortlisting must be 5 (five) candidates. Candidate ML Lebitso met all the requirements but the applicant has no primary school experience as well as only 2 (two) years in Management. The only other candidate that met the prescribed criteria was ZS Mehlo. These shortlisting was done with no person in mind and the criteria must be approved objectively and certified in the presence of the observers.
43. The panel was properly trained and the role of the observers were clearly spelled out, but the panel did not properly followed the procedure as the observers was not given the final list of 5 (five) candidates. When the criteria were not followed the SGB and the District Officer checked it before the HOD can sign it off. The Human Resources was responsible for the quality assurance process. There was no recommendations form the SGB and there were discrepancies on the file and the process was never finalized. The recommended candidate was not supposed to be shortlisted according to the criteria. There was then engagement between the school and himself and permission was requested to appoint the second choice.
44. On pages 28 and 29 of bundle “R” dated the 6th of December 2018, the District Director wrote a letter to both the Unions, who had observers as part of the interview panel, the following; “School Governing Body recommendation for appointments on the three posts-Deputy Principal and two HOD’s has been received and I have made my own screening and observations over your submissions and deviation for appointments of second candidates for all the three posts. Based on my analysis and considerations of your appeal I therefore opt to differ with you on the following: (1) The SGB show indecisiveness to appoint the right persons for their school in these three posts; (2) The criteria set by the panel did not reflect understanding of the panel towards the school profile; (3) The deviation requested by the SGB to appoint second candidates in all the three posts can be reasonable and can be supported by prescripts, however it cannot be accepted with such discrepancies, this will be contrary to the guidelines of Resolution 1 of 2012; and Reference to Quality Assurance Outcome the following were found regarding the Deputy Principal Post (302); the recommended candidate did not meet the two criteria, one candidate only meet one criteria. It is therefore based on the above information which was brought to my attention from the SGB presentation for their recommendations and Quality Assurance Outcomes, that I instructed for this process to be rescheduled from shortlisting to interviews and be conducted by a neutral panel which I will constitute to run this process for the best interest of our learners in this school, in support to the SGB focus to improve quality teaching in this school”.
45. The SGB was fully aware of the independent panel and they asked for help. The request was approved on the 16th of January 2019 as can be seen on pages 2 to 4 in bundle “B”. The power to appoint such an independent panel vested in the Superintendent General. The powers were delegated to the Principal and above. During the process of the Deputy Principal post, the Unions were all the way present as observers. The HOD remain the employer with delegated powers. The filling of post levels 1-3 was delegated to the District Directors and above and the Superintendent General Education have the delegated authority to approve positions to be filled. The position of the Deputy Principal was a Post level 3 within the power of the District Director.
46. Under cross-examination he confirmed that he did not receive any recommendation for the process of the Deputy Principal. He agreed that he received recommendation for the second round namely the 2nd respondent to be appointed. He assessed the criteria for this position as the file was brought to him. He confirmed that Human Resources are responsible for the Quality Assurance outcomes of each position. He agreed that points 4.4.2 and 4.4.4 on page 43 of bundle “A” did not refer to certification, but it explained the role of the observers as already explained. They must stop the process when it did not comply with the Resolution. He confirmed that the SGB never confirmed the first process.
47. He confirmed that page 45 to 47 in bundle “R” was a summary of the discussion for the interview with the second respondent. Page 12 was the neutral panel’s motivation for interviews on the 28th of January 2019 for the position of Deputy Principal. The neutral panel for DR Sello Primary School agreed with the ranking of the panel and recommended ML Lebitso, after the panel has reported back on the interviews conducted. The witness agreed that the HOD was engaged in the second process. He stated that the letter on page 51 of bundle “R” who was addressed to him by the school was received by him by hand. In this letter they confirmed that the position of the Deputy Principal can be rescheduled and a neural panel appointed.
48. He further agreed that the applicant was not informed within eight weeks that he was not successful as the first process never came to a conclusion. He further agreed that he informed the stakeholders and gave adequate reasons for the administrative actions taken by him. He confirmed that the invitation to the shortlisted candidates as on page 8 of bundle “R” was not send out by the school but by the Department of Education in the Free state. He stated that nobody declined the recommendations as on page 26 of bundle “R” as it was not done as prescribed. The candidate shortlisted in the first round was not supposed to be shortlisted. Only when recommendations were signed it was approved recommendations. In this case it was not signed by the panel and the SGB.
49. Under re-examination he confirmed that Tabatha was not part of the SGB as he was the Resource person in the first panel for the position of Deputy Principal. He confirmed that there was no recommendation from the SGB during the first process. He received no recommendation that the applicant was the person to be appointed. He confirmed that both NAPTOSA and SADTU were informed of the outcome of the first process. The role of the observers was to see whether the process meet the compliance of the Resolution. He stated that the feedback that the applicant was the recommended applicant did not come from the panel.
The second witness of the Respondent, Tshidiso Setlaba, Principal of DR Sello School, after having been sworn in, testified as follows:
50. He referred to the Collective Agreement 1 of 2012 page 35 to 51 of bundle “A” where it states on page 44; “that the committee must ensure that the shortlisting criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution. The nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account”. The criteria mentioned was used to shortlisting the candidates. The scoresheets to be used appears on page 49. The panel had the criteria in terms how to shortlist. The criteria were: (1) Primary qualifications and primary experience; (2) Four years’ management experience; (3) Acting in a HOD or senior position. The SADTU representative had a query in terms of primary experience and he said the panel must shortlisted anybody who can assist the school. The witness was alone and he was overpowered by the rest of the panel who were quiet including Human Resources.
51. The applicant was not supposed to be shortlisted as his CV indicated that he had two years’ experience as a Subject Head. Only HOD, Deputy Principal and Principal positions qualifies as management experience. He also had no experience in primary education. After the interviews by the panel of the 5 (five) shortlisted candidates they must give feedback to the SGB with recommendation of the recommended candidate. The SGB must approve the recommendation in a meeting and then sent it to the District for processing. According to the witness they tried twice without success to set up a meeting with the required quorum. They did not manage to do so and therefore the recommendations by the panel was never approved by the SGB. They were three weeks outside the Management Plan and decided to send the whole file to the District.
52. Human Resources found discrepancies in the criteria and shortlisted candidates. District called the Panel and SGB to show the discrepancies and the SGB requested the District to intervene and the District decided to repeat the interviews under a new panel without the applicant on the shortlist. Under cross-examination the witness stated that his role was that he was a member of the panel. He stated the reason why the applicant was not appointed was due to the fact that he had no primary school experience and no relevant management experience. He did not meet the inherent needs of the post as he should have primary qualifications and experience. The applicant was shortlisted with two years’ irrelevant experience as a Subject Head at a secondary school. He was overpowered by the panel members after the SADTU member suggested that secondary school experience is accepted and the applicant must therefore also be shortlisted.
Closing arguments
53. Both the representatives of the applicant and the respondent sent written closing arguments by the 31st of October 2019 as agreed on the 24th of October 2019. Both parties’ submissions and arguments were perused and incorporated in the decisions made in the award.
Analysis of evidence and argument
54. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.
55. In this arbitration I am firstly going to refer to Collective Agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations. Secondly I am going to refer to Free State Province Collective Agreement No 1 of 2012, Guidelines for Advertising and filling of Educator Posts at Institutions.
56. The Panellist is expected to determine whether the first respondent’s failure to promote the applicant was substantive unfair, meaning whether the applicant was not appointed despite being the best candidate given the skills he possesses, and a candidate that does not possess the same/similar skills was appointed. From a procedural aspect the Panellist must be satisfied that the applicant suffered prejudice during a recruitment and selection process for promotion post. Fairness requires an evaluation that is multidimensional. The fairness required in determination of an unfair labour practice must be fairness against both applicant and respondent.
57. I have enquired from the parties whether an appointment has been made in the post that the applicant contests. An appointment has been made and ML Lebitso has been joined as the second respondent to this arbitration process. She however did not testify at the arbitration, but was present on all the days.
58. An employee who alleged that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. He must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. It depends upon the circumstances of a particular case and essentially involves a value judgement.
59. The arbitration of a promotion dispute entails a review of the employer’s decision. In applying the Sidomo test to promotion disputes; it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair. A recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful.
60. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. There is no general right to promotion. What employees do have is a right to be fairly considered for promotion when a vacancy arises. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. The role of the arbitrator is to oversee that the employer did not act unfairly against the applicant who was not promoted. The decision 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 promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of the discretion.
61. Where the applicant complains that another employee was promoted, he must show that: (1) he has the necessary skills; and (2) the person who was promoted does not possess the same or same level of skills. The Head of Department as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates. The HOD is however not bound by the recommendations of the SGB and may deviate from their recommendations where there are sound reasons to do so. If the decision arrived at by the HOD is reasonable then it must stand.
62. The applicant needs to show that, but for the irregularity or unfairness, he would have been promoted to the position of Deputy Principal. This necessarily means that the applicant must show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of all the candidates who applied for the position.
63. The positions were advertised for one Deputy Principal and two Head of Departments at DR Sello Primary School. The closing date was August 2018. The applications were received and this school, DR Sello Primary School, were also instructed how to complete the process and handed the approved recommendations over to the HOD. From the applications the 5 (five) candidates were shortlisted for the Deputy Principal position. They were invited for interviews and interviewed by the interview panel and recommendations were supposed to be made to the SGB. The recommendation was then supposed to go to the SGB of the school and after approval it was supposed to be handed over to the District HOD. The successful candidate was supposed to report for duty on the 1st of December 2018. This process was supposed to be completed over a period of three months.
64. All the schools run the whole process and DR Sello Primary School was left behind. The first witness of the respondent found out what happened and the Principal said that the SGB did not meet to approve the recommendations made by the interview panel. He arranged with the Principal to get the SGB together and a meeting was arranged. During the meeting he was told that after two attempts they could not get a quorum. He had to go and assisted them to get together to make a recommendation. In the meantime the Principal already presented the file to the District Director. The file went back to the HR Department and they picked up errors on the file. The first witness of the respondent went back to the school and the Principal called to find out when the SGB will be available to find out why the SGB did not sign off the recommendations made by the panel.
65. There were no recommendations form the SGB and there were discrepancies on the file and the process was never finalized. The recommended candidate was not supposed to be shortlisted according to the criteria. There was then engagement between the school and the District Director and permission was requested to appoint the second choice.
66. The second witness of the respondent referred to the Collective Agreement 1 of 2012 page 35 to 51 of bundle “A” where it states on page 44; “that the committee must ensure that the shortlisting criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution. The nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account”. The criteria mentioned was used to shortlist the candidates. The scoresheets to be used appears on page 49. The Panel had the criteria in terms how to shortlist. The criteria were: (1) Primary qualifications and primary experience; (2) Four years’ management experience; (3) Acting in a HOD or senior position. The SADTU representative had a query in terms of primary experience and he said the panel must shortlisted anybody who can assist the school. The witness was alone and he was overpowered by the rest of the panel who were quiet including Human Resources.
67. The applicant was not supposed to be shortlisted as his CV indicated that he had two years’ experience as a Subject Head. Only HOD, Deputy Principal and Principal positions qualifies as management experience. He also had no experience in primary education. The recommendations by the panel was never approved by the SGB. They were three weeks outside the Management Plan and decided to send the whole file to the District.
68. Resources found discrepancies in the criteria and shortlisted candidates. District called the panel and SGB to show the discrepancies and the SGB requested the District to intervene and the District decided to repeat the interviews under a new panel without the applicant on the shortlist. The applicant did not meet the inherent needs of the post as he should have had primary qualifications and experience. The applicant was the first round shortlisted with two years’ irrelevant experience as a Subject Head at a secondary school.
69. On pages 28 and 29 of bundle “R” dated the 6th of December 2018, the District Director wrote a letter to both the unions, who had observers as part of the interview panel, the following: “Based on my analysis and considerations of your appeal I therefore opt to differ with you on the following: (1) The SGB show indecisiveness to appoint the right persons for their school in these three posts; (2) The criteria set by the panel did not reflect understanding of the Panel towards the school profile; (3) The deviation requested by the SGB to appoint second candidates in all the three posts can be reasonable and can be supported by prescripts, however it cannot be accepted with such discrepancies, this will be contrary to the guidelines of Resolution 1 of 2012; and Reference to Quality Assurance Outcome the following were found regarding the Deputy Principal Post (302); the recommended candidate did not meet the two criteria, one candidate only met one criteria. It is therefore based on the above information which was brought to my attention from the SGB presentation for their recommendations and Quality Assurance Outcomes, that I instructed for this process to be rescheduled from shortlisting to interviews and be conducted by a neutral panel which I will constitute to run this process for the best interest of our learners in this school, in support to the SGB focus to improve quality teaching in this school”.
70. The Districts Office intervened in terms of Collective Agreement no 1 of 2012 and appointed an independent committee. This was done after consultation with the SGB, Mr Setlaba (Principal) and Mr Tshabalala. Powers to appoint an independent panel are conferred to the District Director delegation of powers by the Head of Department (HOD) (See pages 7 and 8 of bundle “R”). No one was recommended by the SGB including both the applicant and the second respondent until the process was taken over by the Districts Office which started the process again from the shortlisting and interviewing process under a newly appointed interview panel in 2019. The applicant was not on this shortlisting as he did not meet the required criteria and they recommended the second respondent to the SGB and they approved her appointment in the position of Deputy Principal.
71. The representative of the respondent submitted that it was clear from the testimony of Mr Thabatha, witness of the applicant, that he was biased from the onset to shortlist and to ensure that the applicant was shortlisted and interviewed and appointed. Although he conceded that the applicant did have a primary qualification but lacked primary experience as he had being teaching at secondary school. He failed to look at the needs of the school but was held burdened to appoint an unsuitable person in this senior position.
72. The neutral panel for DR Sello Primary School agreed with the ranking of the panel and recommended ML Lebitso, after the panel has reported back on the interviews conducted. The second witness of the respondent agreed that the HOD was engaged in the second process. In a letter they confirmed that the position of the Deputy Principal can be rescheduled and a neural panel appointed.
73. The applicant testified that he never received the response as can be seen on page 29 of bundle “R”. The letter dated the 6th of December 2018, was addressed to Mr Shasha, the Regional Secretary of SADTU, Northern Free State Region and not to him. It stated that: “Based on my analysis and consideration of your appeal, I therefore opt to differ with you on the following; Deputy Principal Post (302): the recommended candidate did not meet the two criterions, one candidate only meet one criteria”. It was further stated that to resolve this process altogether from shortlisting to interviews it must be rescheduled and a neutral panel will conduct the process.
74. The applicant referred to the paragraph on page 17 of bundle “A” which states; “The administrator to whom the request is made must, within 90 days after receiving the request, give that person adequate reasons in writing for the administrative action”. According to the applicant the Department of Education did not adhere to 90 days as stated. The first respondent however did respond to the applicant as can be seen in paragraph 69 by addressing a letter to the Union Regional office. This was done within the prescribed 90 days. I find that the applicant was not informed that he was unsuccessful, but he was informed that the interview process will be redone.
75. The applicant agreed that he had not 4 (four) years’ managerial experience. He also confirmed the HOD declined the recommendation from the SGB. He was however not considered during the second round of shortlisting and interviews. It is stated on page 27 that the process can be nullified and on page 54 there is a recommendation that the process be nullified. The applicant agreed that it states on page 55 that SADTU recommended that the process be nullified. The first witness of the applicant stated that the applicant was never appointed as the Department of Education has the right to intervene.
76. The third witness of the applicant further admitted that the applicant was never appointed as an HOD at a primary school and therefore did not have the four years’ management experience. The applicant was a Subject Head since 2017. He did not comment when he was showed that the SGB requested the District to take over the process. He stated that nobody declined the recommendations as on page 26 of bundle “R” as it was not done as prescribed. The candidates shortlisted in the first round were not supposed to be shortlisted. Only when recommendations were signed it was approved recommendations. In this case it was not signed by the panel and the SGB.
77. The representative of the respondent submitted that the applicant, AS Taje, testified that he was shortlisted for a position of Deputy Principal at DR Sello Primary School in Viljoenskroon in the Fazile Dabi District, and he indeed attended the interviews and he was told that he was the preferred candidate by members of SADTU. He also failed to outline as whether the SGB recommended him to the District Director who was supposed to make the appointment. The applicant failed to prove that he was a better candidate than the second respondent and present incumbent ML Lebitso. He also failed to produce his CV to prove that he had more experience as a Head of Department for a period equivalent or exceeding 4 (four) years as stipulated in the shortlisting criteria. Mr TJ Setlaba, the Principal, indicated that he was in the interviews and he knew that the applicant had not 4 (four) years’ experience as a Head of Department at a primary school in a managerial position, as he was appointed as a Subject Head since 2017.
78. The representative of the applicant submitted that the unfair conduct by the respondent relating to the promotion of the applicant is informed by the following reasons: (1) The applicant was recommended for appointment of Deputy Principal of DR Sello Primary School; (2) He performed better than all other candidates in the first process of the interviews in terms of scores; (3) The meeting which was held at school voted for the second candidate to be appointed; (4) The school governing body was not consulted on the establishment of the independent panel; and (5) The Department of Education acted altra vires in many occasions in this process..
79. The representative if the applicant further submitted that both witnesses of the respondent made allegations that the applicant did not meet two criteria being management experience and primary school experience. However the issue of recommendation of the applicant was clearly corroborated by all witnesses of the applicant. The applicant became unsuccessful in the first interview process due to fabricated reasons provided. The respondent failed to inform him that he was unsuccessful. He referred to the case of Kimberley Junior School v The Head of the Northern Cape Education Department (278/08) [2009/ZASCA58] (28 May 2009). The Court held that the deviation by the Head of Education to appoint as per School Governing Body recommendations to be unconstitutional.
80. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. Unless the actual procedure followed results in unfairness, the arbitrator should not make a finding of procedural unfairness. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he should generally, at least demonstrate that there was conduct that denied him a fair opportunity to compete a post.
81. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
82. The representative of the applicant further submitted that the evidence led by both Mt Setlaba and Mr Tshabalala indicated that the process was mud by flaws and biasedness towards the applicant. Hence the District Management thought it would be in the interest of justice and fairness that the process should be restarted. Both the PAM document B 5.5.1 indicated that when the HOD consider the recommendations contemplated in paragraph B 5.4.13 he/she must before making an appointment ensure that the SGB has meet the requirements in paragraph B 5.4.7.4 which states; “that the procedure would ensure that the recommendations is not obtained through undue influence on members of the SGB”. There was a clear indication that there was an undue influence from SADTU on the SGB to ensure that the applicant was shortlisted and interviewed as indicated by the Principal. Paragraph B.5.4.8 and B 5.4.8.1 states that; “The interview panel must also consider the curriculum needs of the institution.
83. The conduct of the employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting the applicant whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process. The applicant was not promoted as he did not have two of the criteria set for the position as Deputy Principal. He had not 4 (four) years’ managerial experience as Head of a Department or as Deputy Principal. He further has no experience in a primary school.
84. In terms of a fair procedure the first respondent must ensure that a fair process is followed. Even though relevant case law states that “One does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions…” (Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02 / 15349, [2006] JOL 17802 (W); also see Douglas Hoërskool & 'n ander v Premier, Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 1144I–1145I). It is very clear in the matter before me that in terms of the two criteria mentioned the applicant should not have been shortlisted as he did not have the relevant managerial experience as well as primary school experience. That was the reason he was not appointed and not put on the shortlist for the second round of interviews in January 2019. Then the second respondent was appointed as she met all the criteria, even in the first round of shortlisting and interviews in 2018.
85. Expressed somewhat differently, the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H). An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33). The applicant could not prove that he had 4 (four) years’ managerial experience as HOD, Deputy Principal or Principal. He only had 2 (two) years’ experience as Subject Head. Neither could he prove that he had primary school experience and he was put on the shortlist and interviewed by the involvement of the union member of SADTU on the Panel. Then secondary school experience was added to the criteria and the applicant was added and so-called recommended to the SGB.
86. A recommendation by a school governing body is an essential prerequisite for the promotion of an educator by the Head of Department as employer and without such a recommendation the promotion is ultra vires and unlawful. That recommendation to the SGB never took place and the SGB never approved the candidate list with the applicant as number one candidate during the first round of interviews. Neither did the District Director and Hunan Resources approve the appointment of the applicant. The first process was indeed nullified and redone. The second respondent was then appointed in the position of Deputy Principal during the second round of interviews.
87. The applicant bears the onus of proving the claim on a balance of probabilities. The applicant must prove not only the existence of the labour practice, but also that it is unfair. From a procedural aspect I am satisfied that the applicant did not suffer prejudice during the recruitment and selection process for the promotion post. I find that the procedure followed by the HOD was fair and that no Unfair Labour Practice was committed by the first respondent to appoint the second respondent and not the applicant.
88. In light of the above I make the following award.
AWARD
89. The first respondent did not commit an Unfair Labour Practice in the non-appointment of the applicant and the appointment of the 2nd respondent for the advertised position of Deputy Principal at DR Sello Primary School post (302).
90. There is no order as to costs
Signature:
Panelist: Gert van der Berg
Sector: Free State Department of Education