Case Number: PSES390-19/20EC
Province: Eastern Cape
Applicant: VAN EYCK, C.G.
Respondent: 1st Respondent Department of Education Eastern Cape and 2nd Respondent C.J. HOOFMAN
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education: Eastern Cape in Humansdorp.
Award Date: 14 November 2019
Arbitrator: MBULELO SAFA
Case Number: PSES390-19/20EC
Commissioner: MBULELO SAFA
Date of Award 14 November 2019
In the ARBITRATION between: -
VAN EYCK, C.G.
DEPARTMENT OF EDUCATION, EASTERN CAPE
C.J. HOOFMAN 2nd Respondent
Applicant’s representative: Ms N. Ngxonono
Applicant’s Address: 129 COMMERCIAL ROAD, PORT ELIZABETH
Telephone: 042 2840276
Telefax 042 2840276
1st Respondent’s Representative: Mr Euan Hector
1st Respondent’s Address DEPARTMENT OF EDUCATION, Graaf Reinet
2nd Respondent Representative: In person
2nd Respondent Address:
Telephone : 0422840501
Telefax : 0422840276
Email : email@example.com
DETAILS OF THE HEARING AND REPRESENTATION
1. This matter was set down for arbitration on the 30th October 2019 at the offices of the 1st Respondent, Department of Education: Eastern Cape in Humansdorp.
2. The Applicant, Ms CG Van Eyck was represented by Ms N.F. Ngxonono from SADTU, the First Respondent, was represented by Mr Euan Hector who is their Labour Relations Officer and the Second Respondent, Mr CJ Hoofman appeared in person.
3. The proceedings were recorded in an audio tape.
ISSUES TO BE DECIDED
4. Whether or not the decision of the 1st Respondent to remove the application of the Applicant during sifting process is unfair and to make an appropriate award.
BACKGROUND TO THE ISSUE
5. The 1st Respondent advertised a HOD post in the bulletin, Volume 2 of 2019. One of the posts was the post at Hankey Secondary School (the school), post number 509. The post was for the HOD for Languages.
6. The Applicant applied for the post, but her application was removed during the sifting process.
7. Unhappy with the decision of the First Respondent, she referred an unfair labour practice dispute relating to promotion to the ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
8. At conciliation/pre-arbitration this dispute was combined with another dispute, case number PSES373-19/20EC. The cases were heard together at arbitration, but I took a decision that in order to avoid confusion each case must have its own award.
9. The relief sought by the Applicant is compensation.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant testified himself and also relied on the documents he submitted at arbitration.
11. The 1st Respondent did not call any witness but relied on the bundle of documents that were submitted.
12. The 2nd Respondent led evidence and indicated that he was going to rely on the bundle submitted by the 1st Respondent.
APPLICANT’S EVEDENCE AND ARGUMENT
13. The Applicant testified under oath that he applied for the post of HOD at the school but she was informed that her application was removed during the sifting process because she was said not to meet the minimum requirements for appointment in the post.
14. She was told that her teaching qualification was for the Primary School and not suitable for the Secondary School.
15. The removal of her application was unfair because she has been teaching languages since 2011, teaching grade 10 to 12 with the same qualification that the Respondent said was not relevant.
16. She said another applicant for the post, Mr Noel Draai, have the same qualifications as her but he was shortlisted.
17. She previously applied for the post of HOD at the school and in other schools and was shortlisted.
18. Her qualifications are Diploma in Education (Senior Primary), Higher Diploma in Education and Bachelor of Education (in Education Law and Management) and what she knew was that she was qualified to teach from grade 4 to grade 12. She wanted to be shown the legislation that says she was not qualified for the post.
19. Mr Noel Draai testified that indeed he had the same qualifications as the Applicant and that the Applicant was an experienced English teacher.
SECOND RESPONDENT’S EVIDENCE AND ARGUMENT
20. Mr CJ Hoofman testified under oath that he knew the Applicant well and she was more like a friend as they also travel together to school every day.
21. He said he was in the English Department since 2010 and was trained by the previous HOD, Mrs August.
22. He has received good performance ratings over the years and also received an award from SADTU.
ANALYSIS OF EVIDENCE AND ARGUMENT
23. The Applicant was clear that she was challenging the decision to remove her application during sifting. In essence therefore the Applicant is challenging the procedural unfairness of the process.
24. Sifting is described as the process wherein the applications of candidates who do not meet the requirements of the post as stated in the advert are eliminated by the employing department. Usually the requirements are the minimum qualifications and the minimum experience as stated in the post.
25. From the evidence of the Applicant it could be discerned that her application was eliminated because of her qualifications.
26. In terms of Clause B.3.2.1 of PAM the minimum qualifications for the post of Departmental Head are matric plus a three-year qualification including the professional teaching qualification.
27. With her qualifications, the Applicant was not supposed to have been eliminated as she met the minimum requirements of the post as stated in the advert and in terms of PAM.
28. By being eliminated, the Applicant was denied an opportunity of possible shortlisting and consideration for promotion. The reading of the shortlisting report shows that there were three (03) candidates shortlisted, which is lesser than the maximum allowed in terms of PAM.
29. Labour Appeal Court in Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11)  ZALAC 9;  9 BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012) the LAC confirmed the decision of the Labour Court in the same matter that there is no right to promotion, there is only a right to be given a fair opportunity to compete for the post. The court further held that any conduct that denies the employee an opportunity to compete for the post constitutes an unfair labour practice.
30. The decision of the First Respondent to eliminate the application of the Applicant was prejudicial to the Applicant and amounted to procedural unfairness.
31. The Applicant indicated that she did not want the relief that the appointment of the Second Respondent be set aside or the process be repeated. Also there was no evidence led that the Applicant was the best of all the candidates. My finding is therefore that it is not appropriate to set aside the appointment of the Second Respondent and start the process afresh.
32. Taking guidance from Clause 71 of ELRC Collective Agreement 3 of 2016 the Applicant is entitled to compensation to compensate for the non-matrimonial loss. The collective agreement holds it that compensation is in the form of a solatium for the loss of a right. In the circumstances I hereby issue the following award
33. The action of the First Respondent in not to give the Applicant an opportunity to be considered for the post of the HOD at the school was procedurally unfair.
34. The Respondent must pay the Applicant a compensation (solatium) in the amount of R10 000 to be paid by no later than 31 December 2019.
ELRC Panelist: Mbulelo Safa