PSES 418-17/18WC

Award  Date:

8 November 2019

Case Number: PSES 418-17/18WC
Province: Western Cape
Applicant: FRANDELENE WILSKUT
Respondent: 1st Respondent HOD, WESTERN CAPE DEPARTMENT OF EDUCATION, 2nd Respondent
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 8 November 2019
Arbitrator: D P Van Tonder
Case No PSES 418-17/18WC

In the matter between

FRANDELENE WILSKUT Applicant

and

HOD, WESTERN CAPE DEPARTMENT OF EDUCATION First Respondent

SHAFIEK JACOBS Second Respondent

ARBITRATOR: D P Van Tonder
HEARD: 9 April 2018; 18 & 19 July 2018
28 August 2018; 4 September 2018
5 November 2018; 16 & 17 April 2019
7 October 2019
FINALISED: 31 October 2019
DELIVERED: 08 November 2019

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Unfair Labour Practice – Promotion

ARBITRATION AWARD

Table of Contents

I THE PARTIES 3

II PROCEDURAL HISTORY 3

III THE ISSUES TO BE DETERMINED 5

IV BACKGROUND 5

V SUMMARY OF THE EVIDENCE 7

VI THE ARGUMENTS 24

VII DISCUSSION AND FINDINGS 25

AWARD 62

THE PARTIES
Applicant
[1] The applicant is Mrs Frandelene Wikskut who was represented by a practising attorney Mr Dollie from Dollie Attorneys in Cape Town.

Respondents
[2] First respondent is the Provincial Head of Department of the Western Cape Department of Education and was first represented by Mr Joseph and thereafter by Mr Horne, both labour relations officials. Second respondent is Mr Shafiek Jacobs, who was represented by Mr Ahmed from NAPTOSA.

II PROCEDURAL HISTORY
[3] After an unsuccessful conciliation before another panellist, the matter was referred to arbitration and I was appointed as arbitrator. Evidence was heard in Worcester on 9 April 2018, 18 & 19 July 2018, 28 August 2018, 4 September 2018, 5 November 2018 and 16 & 17 April 2019. The proceedings were digitally recorded.

[4] In order to understand why the matter took so long to complete, I need to place the following on record:

• Each time that we adjourned for further evidence I offered earlier dates for the continuation of the matter, but the parties declined those dates because the earlier dates that I had available did not suit them;
• In agreeing on dates for continuation of the matter we had to ensure that the dates did not fall in the school holidays or during exams, in order not to cause inconvenience to the educators involved in the case, the school, and learners who write exams;
• The matter was scheduled for 5 February 2019, but could not proceed on that day because the first respondent’s last witness who was meant to give evidence, did not attend the hearing and we had to postpone the matter for his evidence;
• The matter was scheduled for hearing for 20 August 2019, but could not proceed on that day because Mr Ahmed was sick.

[5] The matter was also set down for arbitration for 7 and October 2019 in order for second respondent to give evidence and call several witnesses. However, at the hearing of 7 October 2019 second respondent and NAPTOSA advised us that second respondent would no longer be giving evidence or calling witnesses and is withdrawing from the dispute. The two remaining parties however agreed that although second respondent had withdrawn from the matter, he may nevertheless still submit closing arguments.

[6] The matter was finalised when I received the final written closing arguments on 31 October 2019.

III THE ISSUES TO BE DETERMINED

[7] I am required to determine whether an unfair labour practice was committed by first respondent, and if so, the appropriate relief.

IV BACKGROUND

[8] Applicant is a post level 1 educator at De Tuinen Primary school. She has been employed by first respondent as an educator since 1995 and her annual salary is R305 820.

[9] Applicant has referred a promotion dispute involving post number 1551 at De Tuinen Primary School in Worcester, being the post of deputy principal (post level 3), advertised by first respondent in vacancy list 2 of 2016. Approximately 16 candidates applied for the post. Four candidates including applicant and second respondent were shortlisted. Two candidates could not attend, the result being that only applicant and second respondent were interviewed. The school governing body recommended second respondent as their first choice and applicant as the second choice. On 12 April 2017 first respondent appointed second respondent to the post with effect from 1 July 2017.

[10] Applicant claims that the school governing body and first respondent have acted unfairly. As relief she requested to be appointed to the post, alternatively for the process to be repeated and compensation.

[11] On 1 April 2019 second respondent was appointed as the principal of Pieter Langeveld Primary School in Stellenbosch. Accordingly the post of deputy principal at De Tuinen, and in in respect of which post applicant has referred this dispute, is currently vacant again.

V SUMMARY OF THE EVIDENCE
Documentary evidence
[12] Various documents were submitted as part of the evidence. I do not intend to summarise the documentary evidence, and will refer to documents if and where necessary during my discussion of the evidence and arguments. I did however peruse all the documentary evidence that was referred to during the evidence.

Evidence on behalf of applicant
[13] Frandelene Wilskut, the applicant testified under oath. She and second respondent were both educators at De Tuinen when they applied for this post. She compared her cv to that of second respondent. She commenced working as educator at De Tuinen in 1995 and second respondent started in 1994. She holds an Honours Degree in Education whereas second respondent only holds a three year diploma. She has acted as HOD after the interviews for this post. She does not agree with the statement made by second respondent in his cv that he has acted as HOD since 1994. She cannot recall that he has acted as HOD before the third term of 2016. She proceeded to further compare her experience as contained in her cv with that of second respondent as contained in his cv. She is of the view that she has higher qualifications and more experience than second respondent.
[14] After the shortlisting for this post was finalised and she was invited for an interview, she asked the principal Mr Tim for a reference. He said to her that she must prepare herself well because “die manne wou alreeds van jou ontsla raak by kortlysting” (the men already wanted to get rid of you at shortlisting). She asked him what he means by this. Mr Tim responded that at first applicant was not shortlisted. He said that applicant was first scored less than 60% and second respondent was scored more than 80% during interviews. He added that the circuit Manager Ms Harker then said that the panel must again score applicant because according to Ms Harker applicant did comply with the criteria. Mr Tim explained that thereafter when applicant’s cv was assessed again, she was indeed shortlisted.

[15] Applicant testified that on the day of the interviews she was at the venue shortly after 15:00 as she was informed to be there at 15:25. Second respondent was advised to be at the venue at 14:40. Each candidate first had to draft a PowerPoint presentation on a specific topic, followed by the interviews. Each candidate was given 20 minutes to prepare the presentation. She completed her PowerPoint presentation. The employer has no record of the power point presentation.

[16] She was asked to draft her power point presentation on a PC at the school. Ms Sedan supervised her while she did this. After she commenced, the PC froze. She reported this to Ms Sedan who did nothing. Only after she complained to Ms Sedan about this the third time, did Ms Sedan call for Ms Harker. After Ms Harker came, the issue was fixed and Ms Harker gave her an additional ten minutes to complete the presentation. She was still busy with her presentation and still within the 20 minutes that she had to complete it (including the additional 10 minutes) when Ms Sedan said to her that she must finish because her time has run out and that the panel is already waiting for her. All of this caused her to be upset. She later heard from Ms Giempies that second respondent was given much more time than she was to prepare his PowerPoint presentation. Second respondent entered the venue where the PC was to do his presentation at 14:40 and he left that venue between 15:15 and 15:20. When it was put to her during cross-examination that second respondent had to be given extra time because when he arrived the PC was off and when it finally came on there was a password that he did not know, she responded that this is not possible because everybody knew the password of that PC.

[17] The day after the interviews she was informed by a colleague Ms Cupido that the previous day (the day of the interviews), before the interviews, Ms Cupido was walking behind Mr Vernis and Mr Le Roux when she heard Mr Vernis saying to Mr Le Roux that they will have to make sure that the principal Mr Tim also knows the signs. Thereafter Ms Cupido saw the two of them going to the office of the principal.

[18] She also received information from a colleague that on the morning of the interviews Mr Vernis, Mr Le Roux and Mr Sedan were in the classroom of second respondent, with second respondent. Mr Vernis used to speak to her every day at school but on the day of the interviews he avoided her. When she asked him the next day why he did not want to speak to her the previous day, he said that he could not because it was the day of the interviews. When she confronted him with the fact that the previous day he was with second respondent, he responded that they had important things to discuss. On a particular day, after the process was already completed, she was in the office of the principal Mr Tim when Mr Tim said to her that there was no way in which anybody else than second respondent would have been appointed to this post, because of the way in which the men had their plans in order (“die way wat die manne hulle planne in plek gehad het”).
[19] The principal also told her that Mr Vernis was extremely upset when it seemed as if Ms Capello would not be able to attend the interviews. She also heard from Ms Cupido that Mr Tim told her that applicant was brilliant during the interviews. When Ms Cupido wanted to know why applicant was not appointed, Mr Tim responded by saying that she knows how the head of these men think.

[20] She is of the view that the following members on the IC were all biased against her namely Mr Vernis, Ms Capello and Mr Le Roux. Mr Vernis who acted as chairperson of the IC, was illegally on the panel since he is employed as security guard at the school and was elected to the SGB as parent member, while the Schools Act does not allow for a person employed at the school to be elected as parent member. Mr Vernis was biased in favour of second respondent. Before and after the interviews Mr Vernis often used to do odd jobs for second respondent on week-ends. Ms Capello was also biased in favour of second respondent. She is second respondent’s neighbour.

[21] Mr Sedan recused from the IC because he is second respondent’s cousin. His wife also recused herself, but she nevertheless acted as scribe and supervised the candidates when preparing PowerPoint presentations.

[22] The school principal was manipulated by the SGB. After the principal returned from a psychiatric institution, Mr Vernis said that they would make him return there soon again. Mr Tim feared second respondent. The personnel used to joke and say that Mr Tim was second respondent’s deputy.

[23] After the process she lodged a grievance. Ms Harker and Mr Vernis attended the grievance. She was not happy with the fact that the two of them were there because she felt that they were not objective. She was not happy with the manner in which the grievance was handled and the outcome of the grievance. The grievance was not decided in her favour.

[24] She gave evidence about the answers that she gave during the interviews. She was of the view that in the light of the answers that she gave, the IC should have scored her higher. She is of the view that she was the best candidate and that she should have been appointed and not second respondent.

[25] Candice Giempies testified that she is employed as educator at De Tuinen. She was responsible for meeting the candidate on the day of the interviews. Second respondent reported at 14:25. She is of the view that second respondent was given 10 minutes longer than applicant to complete the power point presentations. It was put to her by Mr Ahmed that Ms Sedan will testify that second respondent could not start preparing his presentation because he did not know the password for the PC and that Ms Sedan will testify that she then left the room to call the secretary for the password. Ms Giempies testified that this is not the truth, that she would have seen if anybody entered or left that room while second respondent was there, and that she saw nobody entering or leaving the room during that time.

[26] Stella Cupido testified that she was employed at De Tuinen as educator for 33 years but had retired recently. On the morning of the interviews she heard Mr Vernis saying to Mr Le Roux that they must make sure that the principal knows the signs that they will give him and that he agrees. She then saw the two of them going to Mr Tim.

[27] She further testified that she had a conversation with Mr Tim after the process when her retirement was discussed. During that conversation Mr Tim said to her that applicant was very good (“blerrie goed”), but that she did not get the job because the governing body do as they please.

[28] Andrew Sass testified that he is an educator at another school in Worcester and attended the interviews as SADTU observer. He made his own handwritten notes during the interviews of the answers that each candidate gave during interviews, and based on those notes and what he observed, applicant was the best candidate. His handwritten notes are included in the bundles of documents. He objected during the interviews to the fact that members of the panel did not score correctly and that second respondent was given to many points. Ms Harker did ask panel members to reconsider their scores, and some of them did then adjust their scores. He was still not satisfied that they scored correctly.

[29] He found it strange and suspicious that second respondent’s power point presentation contained the logo of the school. He has never seen this before in the 15 years that he has been involved in interviews. This said to him that second respondent had access to the PC prior to entering the room where the PC was.

[30] Asked what roll the cv’s of the candidates played when the IC made a recommendation to the HOD, he responded that the cv’s were not looked at again after shortlisting. The IC only took into account the results of the interviews and PowerPoint presentations when making a recommendation to the HOD.

[31] Roseline Goliath testified that she has been employed at De Tuinen for 20 years as receptionist. She was on the IC who shortlisted and interviewed applicant and second respondent.

[32] During shortlisting they worked in pairs. She and Mr Tim worked together in a pair, Ms Capello and Mr Le Roux worked in a pair and Mr Vernis worked on his own. She and Mr Tim did not get the cv’s of applicant and second respondent to score. After the initial scoring it was announced that applicant was not shortlisted. Ms Harker was not satisfied that applicant’s cv was scored correctly and then handed applicant’s cv to her (Ms Goliath) and Mr Tim to score. It was clear to them that her cv complied with the criteria and accordingly they then allocated new marks to applicant’s cv, the result of which was that she was shortlisted. She cannot understand on what basis applicant was in the first place not shortlisted.

[33] Although the IC shortlisted and invited four candidates to the interviews, only applicant and second respondent were interviewed. Ms Roodman had to go to the dentist urgently due to toothache and Mrs Spandiel had transport problems. She (Ms Goliath) then asked for the interviews to be postponed in order to give these two candidate and opportunity to take part as she believed that their absence was due to humanitarian reasons. The IC however denied this request and proceeded with interviews in their absence.

[34] On the morning of the interviews, she saw Mr Vernis, Mr Sedan and Mr Le Roux in the classroom of second respondent with second respondent present. This was inappropriate given the fact that that they all knew that they had to interview second respondent that same afternoon. Later that same day she was in the kitchen when Mr Vernis came to her and said that Mr Jacobs (second respondent) is their preferred candidate. He added that Mr Jacobs had been prejudiced at the school over the years and that is now time that this is rectified. She responded that he would not persuade her to be biased. Mr Vernis said then he was disappointed with her.

[35] Initially it was decided that Mr Botha would supervise the candidates during the power point presentations. He and second respondent are most knowledgeable about computers. Then all of a sudden it was announced that by Mr Vernis that Mr Botha would no longer supervise but that it would be Mrs Sedan. The minutes that reflect that she (Ms Goliath) seconded this suggestion, is incorrect. She never supported this motion. No reason was ever provided why Mr Botha could not longer supervise.

[36] Asked to comment on the allegation made by Mr Ahmed that second respondent did not know the password of the PC where he had to prepare the PowerPoint presentation, she said that this could not be the truth. Second respondent knew the password. She knows that he had the password because he gave it to Mrs Mitchell.

[37] During the interview process, she felt pressurised by Mrs Harker to change her scores so as to reduce the scores that she gave to applicant and increase the scores that she gave to second respondent. Mrs Harker specifically addressed her by the name and said that her scores would cause a dispute. She is of the view that applicant was the best candidate at the interviews.

[38] Ms Sedan took written notes of the interviews and there was also a digital recording of the interviews. During the interviews Ms Sedan did not score. However, at the ratification meeting Ms Sedan took part in voting. She found this unacceptable because Mr Piek who was also an applicant and therefore recused himself, but who was not shortlisted, and therefore had no further interest was not permitted to sit in at the ratification meeting by the governing body although she expressly asked that he should be part of the ratification.

[39] After the process, the documentation had to be assembled to be dispatched to the employer. She was assisting until Mr and Mrs Sedan said that her presence is making them uncomfortable. Mr Vernis and Mr Sedan then the compiled the documents. It was Mrs Harker’s duty to sign off the documents before it was dispatched to the employer. One morning when Mrs Harker was at the school for other business, Mr Vernis gave her the documents and asked her to sign it off. Mrs Harker said that they are putting her under pressure as she was at the school for other business, but she nevertheless signed off the documents.

Evidence on behalf of first respondent (employer)
[40] Janet Harker is employed by first respondent as IMG (circuit) manager. She was the resource person during the shortlisting and interviews for the post that is in dispute. She is of the view that the process was fair and that second respondent was the best candidate.

[41] It could be that when panellists initially scored for shortlisting, applicant was not shortlisted. She cannot remember anymore. She is aware that there was a problem with the computer while applicant was preparing her power point presentation. She left the interview room for approximately 2 to 3 minutes to attend to the problem. Applicant was then allowed 10 minutes more to complete her presentation.

[42] During scoring for the interviews she did make a remark that the gap between the scores of panellists was too wide, but she never pressurised any panellist to change scores. The cv’s of the candidates were taken into account for shortlisting and thereafter it was not again taken into account. This is standard practice.

[43] She signed off the documents that had to be dispatched to the HOD in order for the HOD to make an appointment. She was at the school on that particular day for other work, and was then requested to sign the documents, which she did after perusing it. She is aware that Ms Sedan took handwritten notes of the interviews. These handwritten notes were not sent to the HOD as part of the documents sent to her for purposes of enabling her to make an appointment. Only the one page summary of the interviews as contained on page 56 was sent to the employer. There was no need to send to the HOD the record of the questions and answers that was given during the interviews.

[44] She presided over the grievance that applicant referred when she was not appointed. The grievance was ruled against applicant. It is generally the circuit manager who presides over such grievances.

[45] Selvin Arnold Tim is the school principal of De Tuinen. He testified that he has been in that position for 3 years. It needs to be noted that during the course of cross-examination of applicant and her witnesses, the employer’s former representative Mr Joseph made conflicting statements to the witnesses about what Mr Tim would come and testify. Mr Joseph placed on record that this was due to the fact that Mr Tim had changed his version at a late stage during his consultations.
[46] When Mr Tim first commenced testifying before me, he claimed not to remember many things that applicant and her witnesses said he had said to them. Eventually, later during his cross-examination, Mr Tim made an about turn and confessed to have made these statements.

[47] He confirmed that initially he and Ms Goliath did not see the cv of applicant and that she was not shortlisted by the panellists who had scored her. Only after Ms Harker gave them the cv of applicant to score, was she shortlisted. He further testified that her cv clearly complied with the requirements and should have been shortlisted, and that there was no difference of consequence in her cv when compared to that of second respondent. He was of the view that it was intentional (moedswillig en opsetlik) that panellists did not shortlist applicant. This is why he said to applicant after the interviews that she should prepare well for the interviews because the panel already wanted to get rid of her during shortlisting (“want die manne wou al reeds by kortlysting van jou ontsla raak”). He formed the opinion during shortlisting that there were panellists who did not want applicant in the process.

[48] Second respondent knew the password of the PC on which he had to prepare his PowerPoint presentation. Most PC’s at school in any event have the same password.

[49] He admits that after the process, when Ms Cupido was in his office about her retirement, he mentioned to her that applicant was brilliant during the interviews. He concedes that he might have added that she was not appointed because the governing body do as they please. He can recall that he also said that there was no way in which anybody else than second respondent would get the post because of the way in which the panellists had their plans in order (daar was geen manier hoe enige iemand anders die pos sou kry nie as Mnr Jacobs, die way hoe die manne hulle planne in plek gehad het nie). He has a good relationship with second respondent but he was of the view that right from the start panellists were biased in favour of second respondent.

[50] He did speak to Mr Vernis at his office on the day of the interviews, but not with Mr Le Roux. Mr Le Roux might have been standing in the background whilst he spoke to Mr Vernis outside his office.

[51] He is not aware of a recording that was made of the interviews. Handwritten notes were taken by Ms Sedan. He knows that those handwritten notes were not sent to the employer. Only a one page summary of the handwritten notes was sent. He does not know what happened to the handwritten notes.

Evidence on behalf of second respondent (Mr Jacobs)
[52] During the course of the proceedings when cross-examining applicant and her witness, as well as the witnesses of the employer, Mr Ahmed made many statements to witnesses and denied many aspects of their evidence, indicating that he will call witnesses on behalf of second respondent to come and dispute their evidence.

[53] In order to hear the evidence of second respondent and the witnesses that he said he would call (which included Mr Vernis, Mr Le Roux, Mr Sedan, Mrs Sedan and Mrs Capello) we convened on 20 August 2019, but had to postpone because Mr Ahmed was sick. We then adjourned the matter to 7 and 8 October 2019 for second respondent to present evidence and call his witnesses. On 7 October 2019 however second respondent withdrew from the proceedings without calling any witnesses.

[54] Accordingly there is no evidence from second respondent before me. The statements made by Mr Ahmed to witnesses during cross-examination with regard to what his witnesses will come and dispute, is not evidence and can not be taken into account, save insofar as concessions were made by witnesses during cross-examination when statements were made by Mr Ahmed. Accordingly the evidence that was given by witnesses in relation to Mr Vernis, Mrs Capello, Mr Sedan, Mrs Sedan and second respondent for all practical purposes remained unchallenged as the persons on whose instructions Mr Ahmed made statements, were never called as witnesses.

VI THE ARGUMENTS

[55] For the sake of brevity I do not intend to summarise the written arguments here since the written arguments form part of the record. In short Mr Dollie submitted that applicant has proved an unfair labour practice, and asked for the appointment of second respondent to be set aside and for applicant to be appointed to the post, alternatively for the process to be repeated. The representatives of both respondents submitted that an unfair labour practice was not committed and that applicant’s claim must be dismissed.

VII DISCUSSION AND FINDINGS
INTRODUCTION
[56] The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”

[57] ELRC collective agreement 3 of 2016, which contains the guidelines for promotion arbitrations must be considered in determining whether an unfair labour practice relating to promotion has been committed.

[58] An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities.
[59] The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.

SUBSTANTIVE FAIRNESS
[60] Applicant submitted that she was the best candidate and asked for an order appointing her to the post.

[61] There is no general right to promotion. It is however expected that the employer should appoint the best candidate when selecting suitable candidates for promotion. This expectation is subject to the employer’s right to appoint a weaker candidate in the name of affirmative action in order to address imbalances of the past.

[62] The courts have held that in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that the applicant needs to show that not only was he or 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] To determine who is the best candidate for the post one must have regard to the cv’s of all the job applicants, the answers provided by candidates during interviews, the performance of candidates during interviews and the subjective impressions made during interviews, and performance of any practical exercises undertaken.

[64] I have the cv’s of applicant and second respondent before me. In relation to the interviews, I have scores that were allocated by the panellists. I also have the questions that candidates were asked during interviews, but I do not have the answers that were given by candidates. The reason why I do not have the answers, is because the handwritten notes that were taken during the interviews are missing, and were never sent to the employer.

[65] The one page typewritten summary of the interviews , does not assist because it does not contain the answers given by candidates or even a summary of their answers. The notes taken by the SADTU observer during the interviews, and which were made available to me, do not assist either because it does not contain a verbatim record of the answers given by candidates.

[66] The power point presentations that were prepared by the candidates are also lost and in this regard too, I only have the scores allocated by the panellists.

[67] While it is so that I have the evidence of the SADTU observer and Mrs Goliath who were present during the interviews, and who were of the view that applicant was the best candidate, this too does not assist me much. Those are their subjective opinions, and in order for me to determine whether their opinions are correct, I need to see a full verbatim record of the answers provided by each candidate during interviews, as well as the power point presentations. Had this been available during the arbitration, it would have been possible to determine whether scores allocated by various panellists were reasonable and rational, or whether such scores were irrational in relation to the answers given and the PowerPoint presentations. In the absence of such evidence, it is completely impossible to determine whether it was applicant or second respondent who was the best candidate and who should have been appointed. The only information that I have are the cv’s and the score sheets and this alone does not assist me. In the circumstances applicant has not proved that she was the best of all the candidates who applied for the post. I can accordingly not grant an order that she must be appointed to the post.

PROCEDURAL FAIRNESS

General remarks
[68] There is no general right to promotion. What employees do have, is a right to be fairly considered for promotion when a vacancy arises. In order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him and appointing another candidate, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or unfairly discriminated.

[69] During the arbitration witnesses testified about various irregularities and unfair conduct committed by various role players.

Absence of a record of the interviews
[70] It is common cause that the only record that we have of what transpired at the interviews is page 56 of the Bundle, which is also the only record of the interviews that was submitted to the provincial HOD before she made an appointment. Page 56 reads as follows:
Voordat die onderhoudsproses begin het, het ons skriftelike kennis ontvang van die ontrekking van twee kandidate nl. Me K. Roodman en Me LC Spandiel. (Dokumentasie aangeheg)

Eerste kandidaat: Mnr S. Jacobs
Mnr G. Vernis, die voorsitter, verwelkom mnr Jacobs en stel hom op sy gemak. Hy verduidelik aan hom die proses wat sal plaasvind, wat Mnr Jacobs ook so aanvaar. Mnr Vernis vra mnr Jacobs om sy "Power Point" te doen. Dit geskiet binne die voorgestelde tien minute.
Na die aanbieding moes mnr Jacobs vyf vrae beantwoord wat deur qie verskillende lede van die paneel aan hom gestel is. Die kandidaat het positief op al die vrae gereageer en dit reflekteer In die puntetoewysing deur die lede van die paneel. Hy handel al die vrae af in die vasgestelde tyd soos deur die paneel bepaal. .

Tweede Kandidaat: Me F.F. Wilskut
Sy was ook verwelkom deur die voorsitter, Mnr Vernis, Die voorsitter het dieselfde proses gevolg as met die eerste kandidaat. Mnr Vernis vra me Wilskut om haar "Power Point” aanbieding te doen. Die aanbieding geskied binne dif voorgestelde tien minute.
Me Wilskut was ook onderwerp aan vyf vrae wat deur die paneel aan haar gestel is. Die kandidaat het op al die vrae gereageer en dit reflekteer in die punte wat aan haar toegeken is deur die lede van die paneel. Sy het al haar vrae afgehandel in die voorgestelde tyd wat aan haar gebied is.

Die onderhoudskomitee se proses is afgehandel in die teenwoordigheid van Me J. Harker, IBS van die Kaapse Wynland Onderwysdistrikskantoor, Kring 2 en Mnr K. Sass, die Unieverteenwoordiger van SADOU.
Vergadering sluit in goeie orde.

[71] Some witnesses testified that an electronic recording of the proceedings was made, whereas others denied this. All the witnesses however testified that Ms Sedan kept handwritten notes. However, what happened to those handwritten notes, is uncertain, because it is common cause that those handwritten notes were not sent to the employer. I was further advised by the employer’s representative that despite a diligent search, those handwritten notes are missing.

[72] Ms Harker, the circuit manager who signed off the documents that were dispatched to the HOD in order to make an appointment, confirmed that the only record of what transpired at the interviews, is page 56. She testified that it was not necessary to submit a full record of the interviews to the HOD. I am surprised by Ms Harker’s evidence, and would have thought that before she is permitted to act as resource manager in interviews she would be properly trained by her employer and that she would have appraised herself of the applicable collective agreements. Sadly that, is apparently not the case.

[73] Clause 5 of Resolution 5 of 1998 expressly states as follows regarding records to be kept during recruitment and selection processes of educators:
The employer must ensure that accurate records are kept of proceedings dealing with interviews, decisions and motivations relating to the preference list submitted by the SGB and other such structures.

[74] Western Cape ELRC Resolution 1 of 2002, contains a common understanding of the parties in the Western Cape about Resolutio0n 5 of 1998. Paragraph C(xi) of Annexure B to that collective agreement provides:
The governing body must retain accurate records of proceedings relating to both short-listing and interviewing.

[74] There are good policy considerations why accurate recordings of the interviews must be kept. Transparency, and the need to prevent and detect corruption are amongst those policy considerations. It has now become public knowledge that corruption and bribery is rampant as regards appointments of educators. A ministerial task team was even appointed to investigate this issue. Without an accurate record of answers given by candidates during interviews, it would be impossible to determine whether panellists gave scores, which had no or little relation to the answers given by candidates, and thereby identify panellists who in all probability accepted bribes from certain candidates.

[75] But in addition to the policy considerations, there are also more practical reasons why accurate records of the interviews must be kept and that is:

• to enable arbitrators who preside over promotion disputes to determine whether or not unfair conduct was committed in relation to the scores allocated to candidates; and
• to enable the provincial HOD who as employer must make the appointment, to apply her own mind and determine who was the best candidate that she must appoint.

[76] The ultimate decision to promote or not to promote falls within the managerial prerogative of the employer. It is the provincial HOD who is the employer of educators and who makes appointments, and not school governing bodies. Following the interviews, the SGB merely makes a recommendation containing three names of recommended candidates in order of preference, from which list the HOD must make an appointment. Despite the order of preference of the governing body, the HOD may appoint any suitable candidate on the list of candidates provided by the governing body.
[77] The two main factors that the HOD must consider when making an appointment are the ability of the candidate (ensuring that the best candidate is appointed ) and employment equity. The HOD may even (and in certain circumstances) must decline to appoint any candidate on the list and re-advertise the post. Hence, the legislature has envisaged that the HOD must not merely act as rubberstamp of the governing body; She must apply her own mind in determining which candidate is the best candidate (subject to employment equity).

[78] In exercising her discretion when making an appointment, the Head of Department is expected to act reasonably. She must place significant weight on the recommendation of the school governing body who has interviewed the candidates.

[79] The HOD as employer is however not bound by the recommendation of the school governing body and may deviate from their recommendation where there are sound reasons for doing so. While the ranking of candidates by the governing body is an important factor for the HOD to consider, this on its own is not the determinative factor.

[80] Where for example a governing body only based their recommendation and ranking on the results of and performance during interviews, and did not consider the cv’s of candidates again after shortlisting and did not consider employment equity targets, the HOD may very well conclude that when regard is (in addition to what the governing body took into account) also had to the experience and qualifications of candidates as contained in their cv’s and employment equity targets, then another candidate who is not the first nominee of the governing body is the best candidate for the job. Appointments made purely based on performance during interviews and ignoring after shortlisting experience and qualifications of candidates as contained in cv’s, can never be rational because then it may happen that the candidate who is a better speaker is appointed, rather than the candidate who by virtue of experience is better equipped for the job. It is for this reason that ELRC Resolution 3 of 2016 states:
When making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting.

[81] From this it should be clear that unless the HOD has in her possession the answers given by candidates during interviews, she is unable to apply her mind in a rational and reasonable manner when making an appointment. Without such record the HOD would be acting irrationally and capriciously and/or act as a mere rubberstamp for the governing body. This is not permissible. The same applies in relation to any practical assignments or tests (such as power point presentations) that candidates had to undertake.

[82] Since it is common cause that the HOD did not have the answers that the candidates gave during interviews, nor the PowerPoint presentations of the candidates, it was impossible for the HOD as employer to have applied her mind and deciding for herself who was the best candidate for the post. She acted irrationally and capriciously and merely acted as rubber stamp for the governing body, acting solely based on the scores that they allocated to the candidates and their recommendation. Her conduct was accordingly unfair.

The unlawful appointment of Mr Vernis as governing body member
[83] It is common cause that Mr Vernis, who acted as chairperson of the Interview committee, was elected as a parent member of the governing body. It is also common cause that he was at the time employed as security guard at the school by the school. Section 23(3) of the South African Schools Act provides that a parent who is employed at the school may not be a parent member of the governing body. Mr Vernis’ appointment was therefore in contravention of section 23(3) of SASA and accordingly his election and appointment as governing body member and member of the IC was unlawful. This however does not mean that all decisions taken by the SGB or IC when Mr Vernis was present were invalid. Under Roman Dutch Law the position is that where a member of a panel has been duly elected (as opposed to an usurper of power who had merely appointed himself) all acts performed by the panel are considered to be valid, even though the appointment of the member is in law invalid. More than 150 years ago the old Cape Supreme Court held that it would be different if by the presence and votes of persons who were not entitled to be present, acts and proceedings were proposed and carried which would not otherwise have been arrived at, and that in that instance the decision may well be invalid.
[84] The effect of unlawful appointments in relation to governing bodies in the Western Cape is now regulated by statute. On 9 December 1996, the Western Cape Provincial Legislature enacted the Western Cape Provincial School Education Act. This Act amended the law in the Western Cape relating to public schools and more especially certain aspects pertaining to School Governing Bodies. Section 22(4) is of particular importance in this case and the relevant parts of it reads as follows:

No decision taken by a [school] governing body…shall be invalid merely…because a person who was not entitled to sit as a member of that governing body sat on that governing body as such a member, at the time when the decision was taken…, if the decision was taken… by one more than half of the members of the governing body who were then present and entitled to sit as members.

[85] Of the nine members of the SGB, five including Mr Vernis were present during shortlisting and interviews. This means that by virtue of section 22(4) of the Western Cape Schools Act the decisions of the IC and SGB were not invalid, merely because of the presence and participation of Mr Vernis.

[86] But Section 22(4) provision presupposes that the only irregularity in the proceedings relating to the disqualified member, is that he was not entitled to sit as a member. Furthermore the provision deals with the lawfulness and validity of decisions of a governing body; not with the fairness of decisions and conduct of the governing body. It also does not deal with the decisions taken by the governing body due to the bias of the disqualified member or bias of other members. I will deal with those issues under another subheading.

The events that unfolded during preparation of the power point presentations
[87] It is common cause that the computer froze while applicant was preparing her power point presentation. As a result she was given 10 minutes extra time. Applicant was of the view that more than 10 minutes had been lost due to the problems with the computer. It appears to be common cause that the ten additional minutes provided by Ms Harker to applicant, was based on information that she received from Ms Sedan.

[88] Applicant and Ms Giempies testified that second respondent was allowed more time than applicant to prepare his power point presentations. Ms Harker who was called by the employer could not comment on the time that second respondent was given to prepare his power point presentation. She was not made aware of any problems that second respondent had experienced. There is no evidence to contradict the evidence of applicant and Ms Giempies that second respondent was given more time than applicant to prepare his presentation, and there is no reason for me to reject their evidence in this regard.

[89] It was put by Mr Ahmed to applicant and her witnesses, and to Mr Tim that second respondent had to be given extra time because he had to switch on the computer and thereafter he could not gain access to the computer because there was a password on it, which he did not have and that Ms Sedan first had to get the password from Ms Mitchell. The witnesses accepted that if the computer was switched of it would have taken a minute or two to start once second respondent has switched it on. The witnesses however all denied that second respondent did not know the password. According to their evidence everybody knows the password, which is the same for all the computers at the school and second respondent would know the password because he works with all the computers at the school since he is one of the two computer experts.
[90] There is no evidence to contradict the evidence of applicant and her witnesses and that of Mr Tim in this regard and there is nothing improbable about their version in this regard. I accept their evidence and find that second respondent knew the password to the computer and that the computer would have been ready within one to two minutes after he had switched it on.

[91] According to applicant’s version, second respondent entered the venue where the PC was to prepare his presentation at 14:40 and he left that venue between 15:15 and 15:20. One must off course bear in mind that second respondent lost between one and two minutes while waiting for the PC to start. Ms Giempies was of the view that he had 10 minutes longer than applicant to prepare his presentation. I accept their evidence in this regard.

[92] The SADTU observer testified that he found it strange that second respondent’s presentation contained the full logo of the school. He testified that he had never seen this in the 15 years that he had attended interviews. He further testified that it would have taken so long for second respondent to draft the logo from scratch that it was impossible for him to have drafted it while he prepared his presentation.

[93] The fact that the computer froze while applicant prepared her presentation and the fact that it had to be switched on by second respondent is indicative of poor planning on the part of the interview committee and Ms Harker. It is unacceptable that candidates who must prepare a power point presentation is given a PC, which must still be switched on and which then freezes during the presentations. The fact that second respondent used a school logo in his presentation, which he clearly could not have drafted from scratch, means that he either (1) had access to the PC before the time and knew exactly where to find the logo or (2) that he was permitted to bring work on a USB stick or CD with him into the venue. Either way, this is unacceptable and demonstrates the poor planning and/or lack of supervision on the part of the IC.

[94] The presence of Ms Sedan as supervisor was problematic given the fact that she was the wife of applicant’s cousin. She is not an impartial person when it comes to second respondent. The manner in which she was elected as the supervisor, is rather controversial. The decision initially was that Mr Botha, one of the two computer experts at the school (second respondent being the other) would supervise the candidates during power point presentations. But then all of a sudden and for no plausible reason, it was decided by the governing body that Mr Botha would no longer be the supervisor but that it would be Ms Sedan.
[95] Mr Vernis is the one who initiated this motion. Ms Goliath testified that the minutes that reflect that she supported this motion, are inaccurate and that she was against this motion. I accept the evidence of Mrs Goliath.

[96] Coincidentally it was under the watch of Mrs Sedan, the wife of second respondent’s cousin, who was brought in at a late stage by Mr Vernis as supervisor to replace Mr Botha, that:

• The PC froze while applicant prepared her presentation;
• Applicant lost more than 10 minutes due to problems with the PC, but Ms Harker, on recommendation of Ms Sedan only allowed applicant 10 more minutes to make up for lost time;
• Second respondent was allowed 10 minutes more than applicant to prepare his presentation;
• Second respondent inexplicably managed to insert the school logo in his power point presentation;

[97] This is not acceptable. It is not fair. We cannot allow recruitment and selection processes in public education to be conducted in this manner. It brings the process into discredit:

• The PC that candidates use to prepare PowerPoint presentations should be a PC to which none of them has had access before the time. It should already be on when the first candidate takes his seat in front of it, and it should have been tested before the time to ensure that it runs smoothly;
• The person who supervises candidates during preparation of PowerPoint presentations should be a neutral person. There should be no grounds for forming any reasonable apprehension that he or she may be biased in favour of a particular candidate on any grounds;
• Candidates should be given an equal opportunity and the same time for preparing presentations, and when there is a problem, the duration of the problem should be clearly recorded in writing by the resource person and IC so that the additional time allocated corresponds exactly with the time that was wasted;

Reasonable apprehensions of bias, actual bias and undue influence
[98] The South Africa Schools Act provides that any member of a school governing body must withdraw from a meeting for the duration of the discussion and decision making on any issue in which that member has a personal interest. The Act does not define the term “personal interest”, but our Roman Dutch common law is very clear on what a personal interest is, based on which a person must recuse himself. According to common law a person will have a personal interest in a matter and must recuse if he or she:

• has a pecuniary (monetary) interest in the outcome of the matter
• has a non-pecuniary interest which is of such substantial character as to make it likely that he has a real bias in the matter
• is related to one of the parties
• is an intimate friend of one of the parties
• If he has enmity or hostility towards one of the parties.

[99] The reason why such persons should recuse themselves is because any personal form of relationship or kinship, be it familial, social, business or otherwise between the decision maker and one of the applicants could create a reasonable apprehension of bias. This is not fair because justice must be seen to be done.

[100] Of the nine members of the governing body, four recused themselves namely:
• Second respondent;
• Mr Piek (who also applied for the post but who was not shortlisted);
• Mr Sedan (who is applicant’s cousin);
• Mrs Sedan (who is married to Mr Sedan).

Ms Sedan
[101] For no plausible reason it was decided that while Ms Sedan would not have any voting and decision making powers on the IC during shortlisting and interviews, she would act as supervisor during the power point presentations and act as scribe taking minutes during the interviews. Even more strange was the decision that although Mr Piek, who was an applicant but not shortlisted, may not take part in the ratification meeting, Ms Sedan may take part and vote in the ratification meeting.
[102] It was absurd and unfair to have excluded Mr Piek (who was no longer competing for the post) from the ratification meeting, while allowing Ms Sedan (the wife of second respondent’s cousin) to take part and vote in the ratification meeting. She had a personal interest in the matter and should not have taken part.

[103] The use of Ms Sedan as scribe during the interviews, was also unacceptable. The person who acts as scribe fulfils a very important roll. For reasons that I have already discussed, the minutes of the interviews are very important. The record must be accurate. For this reason it is important that an impartial person who can be trusted to take accurate minutes will act as the scribe. Ms Sedan was not a neutral person. She could not be trusted to take accurate minutes of the interviews. For reasons which nobody could explain to me, her handwritten notes are missing and were never submitted to the employer. The one page typewritten document that she prepared as a record of the interviews, is not worth the paper it is written on because it practically says nothing useful. It does not help to write that the two candidates were each asked questions and that each of them answered their questions. We all know that is what happens at interviews. It is the answers to the questions that are important and that is what must be recorded.

Mrs Capello
[104] Mrs Capello is second respondent’s neighbour. She was accordingly also not neutral and a reasonable apprehension exist that she might not have acted without bias. This inference becomes even stronger when one considers the evidence of applicant that the principal had told her that Mr Vernis was extremely upset when it seemed as if Ms Capello would not be able to attend the interviews and almost lost it. This is indicative that Mr Vernis knew that he could count on Mrs Capello (second respondent’s neighbour) to carry out his plans to have second respondent appointed to the post. I will elaborate in more detail about Mr Vernis’ plans in the next paragraphs.

Mr Vernis, Mr Sedan and Mr Le Roux
[105] The problem with Mr Vernis’ presence on the IC does not only lie with the fact that his election as governing body member was illegal because it contravened the South African Schools Act. It goes much further than this. He should never have been part of the process because the evidence that was presented before me, and which I accept, is that he was clearly biased in favour of second respondent.

[106] Applicant testified that Mr Vernis regularly works for second respondent doing odd jobs over week-ends. She testified that this happened before the interviews and also thereafter. No witnesses were called to dispute this version. While this might in itself not create a reasonable apprehension of bias, the further conduct of Mr Vernis, taken together with this aspect, certainly justifies the inference that there was a reasonable apprehension that he was biased in favour of second respondent.

[107] Mrs Goliath testified that on the morning of the interviews, she saw Mr Vernis, Mr Sedan and Mr Le Roux in the classroom of second respondent with second respondent present. There is no evidence to contradict the version of Mrs Goliath in this regard and I accept her version. I agree with Mrs Goliath that this meeting was inappropriate. Second respondent should have realised that it was inappropriate for him to meet members of the governing body on the morning of the interviews. Any reasonable person who observes such a meeting would form a reasonable apprehension of bias on the part of the part of Mr Vernis and Mr Le Roux. What is more, is that applicant testified that although she normally spoke to Mr Vernis every day, he avoided her on the day of the interviews. Yet he chose to have a meeting with second respondent and other governing body members in second respondent’s classroom on the day of the interviews.
[108] Mrs Goliath further testified that on the day of the interviews she was in the kitchen when Mr Vernis came to her and said that Mr Jacobs (second respondent) is their preferred candidate. He added that Mr Jacobs had been prejudiced at the school over the years and that is now time that this is corrected. Mrs Goliath further testified that she responded that she will not allow him to persuade her to be biased, to which Mr Vernis responded that he was disappointed with her. No witnesses were called to contradict this evidence of Mrs Goliath. I accept her evidence in this regard.

[109] This conduct of Mr Vernis clearly demonstrates that he was actually biased in favour of second respondent, had already made up his mind before the interviews, and attempted his best to unduly influence other members of the IC to recommend second respondent as the preferred candidate.

[110] Mr Tim also formed the opinion that Mr Vernis and certain others members of the IC were biased. He said to applicant before the interviews that she must prepare well for the interview because members of the IC already wanted to get rid of her during shortlisting. During his evidence Mr Tim confirmed that it was between Mr Vernis, Mr Le Roux and Ms Capello that applicant was at first not shortlisted.
[111] Mr Tim further testified that after Ms Harker made a remark that it appears that applicant qualifies to be shortlisted, he and Mrs Goliath were asked to review her cv and that they discovered that she did meet the criteria and they then shortlisted her. He testified that he was of the view that the conduct in not shortlisting applicant was intentional (moedswilling en opsetlik). He testified that it was because he formed this opinion that he later said that there was no way in which anybody else than second respondent would get the post because of the way in which the panellists had their plans in order (daar was geen manier hoe enige iemand anders die pos sou kry nie as Mnr Jacobs, die way hoe die manne hulle planne in plek gehad het nie).

[112] I agree with the opinion of Mr Tim. I perused both cv’s of applicant and second respondent and the advertised criteria. There would have been no objective and rational basis for any reasonable person not to have shortlisted her. She complied with all the advertised criteria and could not possibly have scored less than 60 percent. The conduct of the members who first scored her cv and scored her below 60% so that she was initially not shortlisted, must have been intentional and malicious in order to exclude her from the process.

Final remarks regarding bias
[113] Actual bias is described as “approaching the issues…with a mind which was in fact prejudiced or not open to conviction”. Actual bias will be present where a person manifested feelings of bias with reference to his conduct or remarks. Even if there is no evidence of actual bias, a decision maker needs to recuse himself if there is a reasonable apprehension of bias. All that is required is that there is a reasonable apprehension that the decision maker might not decide the issue impartially or without prejudice. The test is whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the decision maker has or will not make an impartial decision, which means a mind open to persuasion by the evidence and arguments submitted to her. The test therefore entails a two-fold objective element: the person apprehending the bias must be a reasonable person and the apprehension of bias must be reasonable in the circumstances. In S v Harksen this test was expanded on by laying down four requirements:

• There must be a suspicion that the official might be biased; and
• The suspicion must be that of a reasonable person in the position of the litigant; and
• The suspicion must be based on reasonable grounds; and
• The suspicion must be one which the reasonable person would (and not might) have had.

[114] When all the circumstances that I have discussed so far, are viewed in conjunction, the most reasonable inference to be drawn, is that any reasonable person would at the very least have had reasonable grounds to suspect that Mr Vernis, Mr Le Roux and Mrs Capello were not impartial.

[115] But in respect of Mr Vernis it actually goes further than merely a reasonable apprehension of bias. His discussion with Mrs Goliath in the kitchen leads to the inescapable inference that he was actually biased in favour of second respondent. And during the discussion with Mrs Goliath he attempted to influence her unduly, which is a contravention of section 6(1)(b)(v) of the Employment of Educators Act. This section provides that the employer may not make an appointment based on a recommendation which was obtained through undue influence of a member of the governing body.
[116] No reliance can be placed by the HOD on the scores and recommendations of members of governing body members who were biased or in respect of whom a reasonable apprehension of bias exists. It would be unfair to do so.

Conclusion
[117] Considering all these facts and circumstances, I am satisfied that applicant has demonstrated on a balance of probabilities that the employer has treated applicant unfairly as regards promotion and has committed an unfair labour practice relating to promotion as intended in section 186(2) of the Labour Relations Act.

VIII RELIEF
[118] An arbitrator’s powers in granting relief in unfair labour practice disputes are wide. Section 193(4) of the LRA provides that an arbitrator may determine any unfair labour practice dispute on terms that the arbitrator deems reasonable, which may include (but is not limited to) ordering reinstatement, re-employment or compensation. Section 138(9) of the LRA, provides that an arbitrator may make any appropriate arbitration award including, but not limited to, an award that gives effect to the provisions and primary objects of the LRA or an award that includes, or is in the form of, a declaratory order.
[119] For the reasons discussed already I am unable to find that applicant was the best of all the candidates who applied for the post and accordingly I cannot appoint her to the post.

[120] Where an employee who has demonstrated unfairness, but who was unable to prove that he was the best of all the candidates who applied for the post, the most appropriate remedy is generally to set aside the process and direct that it must be repeated. In order for an applicant to succeed with this relief, she must demonstrate that she has a realistic chance of being appointed should the process be repeated in a fair manner. Having regard to applicant’s experience and qualifications as contained in her CV, I am satisfied that she has such a realistic chance and I will accordingly make an appropriate order in this regard.

[121] Generally when the ELRC directs that a recruitment and selection process must be repeated, it also sets aside the appointment of the successful candidate. This is standard practice in the ELRC. This approach is also endorsed in Collective Agreement 3 of 2016.

[122] I am unable to make any findings that second respondent did anything to influence the governing body members into appointing him. The only finding of inappropriate conduct that I can make against second respondent is that it was wrong of second respondent to be part of a private meeting with members of the governing body on the morning of his interview, and that he should have known that this is inappropriate.

[123] There is however no need to make a finding that the successful candidate has done anything irregular or dishonest in order to set aside his appointment. The setting aside of the appointment of a successful candidate in a promotion dispute when the appointment was made following a flawed and unfair process is because it would be unfair to allow the successful candidate to benefit from the fruits of an irregular, flawed and unfair process, and because it is nonsensical to direct a recruitment and selection process to be repeated without setting aside the entire process including the appointment of the successful candidate.

[124] Mr Ahmed submitted that because second respondent is no longer in the post but has been promoted into another post at another school, his appointment can no longer be set aside. I do not agree.

[125] I accept that I have no jurisdiction or reason to remove second respondent from the post in which he currently serves in Stellenbosch, and I have no desire to do so either. But I do have jurisdiction to make a finding about the unfair manner in which he was appointed to this post at De Tuinen and set that appointment aside. An order setting aside the appointment of second respondent as deputy principal of De Tuinen, although not capable of nor intended to remove him from his current position as school principal in Stellenbosch will not be academic. It fulfils two functions.
• Firstly, it is rather absurd and nonsensical to direct that a process must be repeated if the first flawed process and the results of the first flawed process are not set aside;
• Secondly, it is unfair to allow second respondent to continue benefitting from the fruits of the flawed, irregular, and unfair process, which resulted in his promotion as deputy principal at De Tuinen. The indirect result of my order setting aside his appointment as deputy principal as De Tuinen, is that second respondent will have to (if he wants to be honest) disclose in any future cv that although he was appointed as deputy principal of De Tuinen, this appointment was later set aside by the ELRC as irregular and unfair, but that the ELRC did not make any finding that second respondent himself was responsible for the unfair, flawed and irregular appointment.
[126] I was advised during the arbitration that a new governing body has now been elected and that Mr and Mrs Sedan, Mrs Castello, Mr Vernis and Mr Le Roux are no longer governing body members. It therefore does not seem necessary to direct the employer to ensure that any of the governing body members are recused from the next process.

[127] Part of my order will however include a directive that Mrs Harker may not act as resource person during the shortlisting and interviews, but that a senior labour relations official with extensive experience in promotions must fulfil that role. If Mrs Harker had familiarised herself with the applicable ELRC Resolutions on promotion this dispute could have been prevented. At the grievance meeting she again had an opportunity to rectify things, and again she failed. I trust that before allowing Mrs Harker to act as resource person again during interviews the employer will give her training in promotion law and the applicable resolutions of the ELRC. The resource person fulfils a crucial role in the recruitment and selection process in public education. Not only is she responsible for ensuring that there is fairness during the shortlisting and interviews, but she must also act as the eyes and ears of the provincial HOD during the shortlisting and interviews, so that the provincial HOD can be fully informed of what transpired during the interviews, when making an appointment. Without a properly trained resource person, the entire process falls flat.
[128] Having decided that the process must be repeated, I must now decide from which stage it must be repeated. I am of the view that it must be repeated from advertising. Although the evidence about the unfair conduct related to what happened during shortlisting, interviews, and thereafter, the problem is that where a governing body has displayed the amount of bias that we have seen in this case, this compromises the integrity of the entire process, even before shortlisting.

[129] Furthermore, three years has passed since the advertisement. Many of the 16 candidates who initially applied for the post, and who comply with the minimum criteria, may no longer be contactable, or no longer interested in the post. It would be absurd and not in the best interests of the learners to order the process to be repeated from shortlisting when the result of that would be that for all practical purposes applicant would be the only remaining candidate, and would end up being appointed by default. In public education the best interests of the learners are always of paramount importance when making decisions. This principle also applies with regard to promotion disputes in public education. The best possible candidates should therefore be afforded the opportunity to apply for and compete for the post. My order would accordingly be for the process to be repeated from advertising.
[130] Given the degree of unfairness committed towards applicant in this case, I am of the view that in addition to repeating the process, it would also be just and equitable to award compensation.

[131] The only guidance in respect of the quantification of compensation given in the LRA is that arbitrators are not permitted to award more than 12 months’ remuneration as compensation and that it must be just and equitable. The determination of compensation for procedural unfairness is not based on the employee’s actual financial losses. Where compensation is aimed at compensating an employee for procedural unfairness, the loss that the employee has suffered is of a non-patrimonial nature and compensation is in the form of a solatium (meaning solace money to salve injured feelings and sentimental loss) for the loss of a right, or put differently, to compensate for the injuria of being treated unfairly.

[132] In order to determine the appropriate amount of compensation for a procedurally unfair dismissal the arbitrator must take into account the extent or severity of the procedural irregularity together with the anxiety or hurt experienced by the employee as a result of the unfairness. Courts in this country have always been very conservative when awarding solatium for non-patrimonial loss and injuria. The principle of conservatism in making such awards is well established. That this conservative approach is the correct approach when determining compensation in employment law was confirmed by the Labour Appeal Court.

[133] The ELRC Collective Agreement on Guidelines in Promotion Arbitrations suggests that a solatium for serious procedural unfairness in a promotion dispute may range from R5000 to R20 000. Considering all the facts and circumstances of the case, I am of the view that an amount of R15 000 compensation would be just and equitable.

AWARD
In the premises I make and publish the following award:

1. First respondent (the employers) has committed an unfair labour practice relating to promotion as intended in section 186(2) of the Labour Relations Act.

2. The appointment of second respondent to the post of deputy principal at De Tuinen Primary school in Worcester is set aside. Second respondent is cautioned that it would be dishonest of him not to disclose this order in future cv’s should he list his stint as deputy principal at De Tuinen in future cv’s. This order does not affect the remuneration that second respondent earned whilst employed in the post of deputy principal at De Tuinen.

3. First respondent is directed to ensure that the entire recruitment and selection process in relation to the post of deputy principal at De Tuinen Primary School in Worcester is repeated from advertising, subject to the following conditions:

3.1 A senior labour relations official (and not Mrs Harker) must act as resource person during shortlisting and interviews;
3.2 The employer must ensure that the governing body is given adequate training prior to the commencement of the process, and that they are sensitized relating to the requirement of impartiality;
3.3 The employer must ensure that the governing body keeps accurate records of the interviews. This record must contain all the answers given by candidates;

3.4 The provincial HOD (employer) must familiarize herself with ELRC Resolution 5 of 1998, Western Cape ELRC Resolution 1 of 2002, and ELRC Resolution 3 of 2016 before she makes an appointment in respect of this post;
3.5 When the provincial HOD (employer) makes an appointment in this post, she must ensure that in addition to the recommendation of the SGB and their scores allocated during interviews, shortlisting, practical assignments etc., she also has in her possession an accurate recording of the interviews (including the answers given by candidates) and that she considers those answers, together with the cv’s of candidates, employment equity, and other relevant information such as power point presentations drafted by the candidates.

4. First respondent is directed to pay to applicant an amount of R15 000 as solatium for the procedural unfairness committed. This amount is payable immediately.

5. No order as to costs is made.

D P Van Tonder
Senior Arbitrator ELRC