Case Number: PSES 338-19/20EC & PSES403-19/20EC
Province: Eastern Cape
Applicant: In the ARBITRATION between: NAPTOSA obo Yolande Lesley Simon & 1 Other
Respondent: Department of Education – Eastern Cape & Others
Venue: District Offices in Port Elizabeth
Award Date: 15 November 2019
Arbitrator: Jonathan Gruss
Panellist: Jonathan Gruss
Case No.: PSES 338-19/20EC & PSES403-19/20EC
Date of Award: 15 November 2019
In the ARBITRATION between:
NAPTOSA obo Yolande Lesley Simon & 1 Other
Department of Education – Eastern Cape & Others
Applicant’s representative: Mr Adams
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
6055 Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Ms Stucki
Respondent’s address: Private Bag X3931
Telephone: 041 403 4452
Telefax: 041 403 4588
Third Party’s representative: Ms Van Wyk
Third Party’s address: Cotswold Office Park,
No. 4, 21 Barton Road
Cotswold, Port Elizabeth, 6001 Telephone: 041 3640500
Telefax: 041 3640510
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Offices in Port Elizabeth on 30 October 2019 and the proceedings were electronically recorded. The applicants, Yolanda Simon and Elizabeth-Ann Prins were represented by Mr Adams, an official from NAPTOSA, a registered trade union. The respondent, Department of Education – Eastern Cape was presented by Ms Stucki, a Labour Relations Officer. The incumbent of the post, the subject of the proceedings, Mariska Osborne was represented by Ms Vanga also from SADTU. The MEC for Education: Eastern Cape was also represented by Ms Stucki. The School Governing Body (SGB) for Westview Special School was represented by Ms Gerber, the chairperson of the SGB. The parties by agreement submitted written closing arguments on 7 November 2019.
ISSUE TO BE DECIDED
2. I am required to determine whether the promotion of the third party, Ms Osborne at Westview Special School was unfair and constitute an unfair Labour practice as envisaged in terms of Section 186(2)(a) of the LRA.
BACKGROUND TO THE ISSUES
3. The following were agreed to as common cause at the commencement of the arbitration:
3.1 The first applicant, Mrs Simon is permanently employed by the respondent as a post level I educator since 1 February 2008 and is currently at Westview Special School and earns R31 000.75 per month. The second applicant, Ms Prins is also permanently employed by the respondent as a post level I educator since 1 January 2013 and is currently employed at Westview Special School and earns R26 971.75.
3.2 Both applicants’ as well as the incumbent applied for the HOD post advertised in Open Education Post Bulletin Volume 2/2009: Post Number 468 (HOD post at Westview Special School).
3.3 The respondent received 8 applications for the post and a total of 4 individuals were shortlisted. Both applicants’ as well as the incumbent were short listed and interviewed. The ranking by the interview panel was follows first Ms Osborne, second Ms Simon, third Prins and fourth Mr Lingam.
3.4 The incumbent, Ms Osborne was recommended by the SGB as the preferred candidate for the position of HOD and was appointed on 9 July 2019.
3.5 The applicants’ claims as to procedural unfairness that the interview panel was not constituted correctly and the resource person (principal) participated in the interview process. There ‘substantive challenge is that the resource person (principal) participated during the interview process and influence outcome of the process and the incumbent did not meet the requirements of the post.
3.6 The Applicants seeks as relief an order for compensation alternatively order directing that the appointment of the incumbent Ms Osborne be set-aside and the process be redone.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
APPLICANT’S EVIDENCE AND ARGUMENT
5. Ms Yolande Lesley Simon and Elizabeth-Ann Prins testified. Ms Simon testified under oath to the following effect.
5.1 She was appointed on 1 February 2008 although she started teaching in 1989. She has been teaching hospitality workshop since the second term last year and before that she taught maths, EMS and before that, all subjects that are taught in grade 8, 9 and 10.
5.2 The Principal was part of the interviews and he asked questions and he made comments. The interview panel consisted of the SGB chairperson, Mrs Gerber (parent); Mrs Samson (parent) and Mr van Rooyen who was supposed to be the resource person. Accordingly, there were no educators that form part of the panel.
5.3 At the time interviews, the SGB representative from the school consisted of Mr Davids, Mrs Goboda and the two deputy principals, Mr Carlson and Ms Neversen.
5.4 Under cross examination, the witness conceded that the interview panel when asking question treated her fairly. She did not object to the Principal’s participation because she did not know that he was not allowed to participate. It was further illustrated that should the principal’s scores be excluded from the total scoring, she would only have received a score of 87 whereas the incumbent would have a score of 94 and Ms Prins would have a score of 88.
5.5 She admitted further that she did not have a subject as set out in the advertisement “state technical subjects”. They do however offer Afrikaans and physical education and she is qualified in those two subjects.
6. Ms Prins testified under oath to the following effect.
6.1 She started teaching in 1986 initially as a part-time lecturer at PE College in hairdressing and cosmetology. In 1988 she taught hairdressing at Basa school and in 2008 she was transferred to Westview where she also taught hairdressing and cosmetology.
6.2 As to qualification, she has a national diploma in foundation phase and an advance certificate in foundation phase and the N3 certificate in hairdressing.
6.3 Under cross examination, she conceded that as it relates to question posed, she was treated fairly during the interviews. She further conceded that the school is not a foundation phase school.
RESPONDENT’S EVIDENCE AND ARGUMENT
7. Mr Ambrose Sylistine Pausen and Ms Penelope Gerber testified for the respondent. Mr Pausen testified under oath to the following effect.
7.1 He is employed by the respondent as a technical educator for the past 36 years. He is currently a Deputy Chief Education Specialist and his field of speciality is engineering, manufacturing and technology. He oversees technical schools within the Nelson Mandela Bay District. Currently they have technical vocational subjects such as hairdressing and the new curriculum provides for technical occupational subjects where a learner will do a trade. A normal academic school starts at grade R and ends with grade 12 whereas a special school has a new curriculum that spans over a period of four years.
7.2 Having a look at the incumbent, Mrs Osborne qualifications, she has qualification computers and technical design and therefore she qualifies to teach at a special school. She has a certificate in graphic design as well. Ms Simon has qualification physical education and such a subject falls under life skills orientation. Ms Simon’s qualifications does not fit the technical subjects. Ms Prins according to her CV has no technical subjects although she has N3 certificate in hairdressing and she is qualified to teach hairdressing. An N3 qualification equates to a grade 12.
7.3 Under cross examination, he testified that he is qualified to testify about technical qualifications although he has not been appointed as a subject advisor in that there are no subject advisors for the technical schools appointed.
8. Ms Gerber testified under oath to the following effect.
8.1 She is employed as office manager for KPMG and she is the chairperson of the SGB at the time of the interviews.
8.2 The Principal, Mr Van Rooyen did participate in the interviews by asking questions and scoring the candidates.
8.3 As it relates to the recommendation they used consensus in compiling the schools preferential list and the panel agreed that the incumbent would be the best ranked candidate and only thereafter did they look at the scores. Mr Van Rooyen did not influence the panel as to who to recommend as well as the awarding of scores. The participation of Mr Van Rooyen, was a human error in that they did not pick up that the Principal should not have participated in scoring the candidates.
8.4 Under cross examination, she conceded that she has been a member of the SB since March the previous year and she received no training as to her role on the SGB. This was the second SGB that she has been a member of, the previous was at a different school. They had no meeting to elect the interview committee because the parents did not want to attend. When question as to why there was no educators on the panel, she testified that she cannot say why there were no educators attending the interviews.
8.5 Under cross-examination, by the incumbent representative, she agreed that the EDO of the school, Mr Zamiza should have picked up before an appointment was made that the Principal as the resource person participated in the interviews by scoring the candidates.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
10. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd  8 BALR 834 (CCMA).”
11. In the case of Mbatha v Durban Institute of Technology (2005) 26 ILJ 2454 (CCMA) Commissioner Maloney is reported as follows: “A candidate has ‘no right to promotion but only to be fairly considered for promotion.”
12. As was said in Public Servants Association obo Dalton & Another v Department of Public Works  9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
13. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’
14. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at  held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.”
15. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others  9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
16. Clause B.5.4.2 of Personnel Administration Measures (PAM) provides the interview committee must comprise of one departmental representative (who may be the school principal), as an observer and resource person; the principal of the school (if he or she is not the departmental representative), except in case where he was she is in the applicant.; Members of the SGB, excluding educator members who are applicants to the advertised posts.
17. Clause 4.1.5 of Provincial Education Labour Relations Chamber: Eastern Cape Resolution No.2 of 2002 that provides for guidelines for interviews states that in the event of the Department representative not being present at the start of proceedings due to unforeseen circumstances, the School Governing Body should: in the case the principal adjourned the meeting to allow for the Department representative to be present. The case of any other educator post continue as the school principal will be the department representative. When neither the school principal nor any other designated departmental official is present, the school governing body must adjourn the meeting to allow the department represented to be present.
18. It is clear based on the evidence that the Principal, Mr Van Rooyen perform two function as it relates to the composition of the interview committee, he performed the function of department representative and he also performed the function of the school principal who is entitled to be a member of the interview panel that evaluates prospective candidate. It is clear that PAM as well as the Provincial guidelines does not specifically make provision for a principal to perform two functions. Question is whether Mr Van Rooyen was supposed from onset to be the departmental representative or be a member of the interview committee because he is the principal. Nevertheless, the guidelines prescribes that in the event that the department representative not being present at the start of the proceedings due to unforeseen circumstances, the School Governing Body should in the case of other educator’s post continue, as the school principal will be the department representative. Does clause 126.96.36.199 of the guidelines allow the principal in the absence of a department representative to perform both functions? The guideline is unclear on this but what is clear is that the principal of the school if he is not the department representative except where he is a candidate forms part of the interview committee. The reason therefore is that the principal as a manager of the school and responsible person for the performance of the school should be involved in the process in order to ensure the best person is recommended.
19. Unfortunately, Mr Van Rooyen did not testify to explain why he performed a dual function.
20. However, as it relates to powers of arbitrator ELRC Collective Agreement 3 of 2016 set out guidelines for promotion arbitrations and these guidelines do curtail the powers of arbitrators. What the guideline do prescribe is that the panelist are expected to determine whether the employer’s failure to promote the aggrieved party (applicant) was substantively unfair, meaning whether the Applicant was not appointed despite being the best candidate given the skills you’ll she possesses, and take and the candidate that does not possess the same/similar skills was appointed. From a procedural aspect, the panelist must be satisfied that the applicant suffer prejudice during the recruitment and selection process for a promotional post.
21. The guideline further make reference to section 28 (2) of the Constitution of the Risk public of South Africa that provides that the best interests of the child are of paramount importance in every matter concerning the child. Our courts according to Settlers Agricultural High School v HOD, Limpopo  JOL 10167 (T) have held that section 28 (2) is also applicable in promotion disputes in the education sector. The guidelines further indicate that the Constitutional Court in Governing Body of the Juma Musjid Primary School v Essay 2001 (8) BCLR 761 (CC) has held that Section 28(2) of the Constitution imposes an obligation on all those who make decisions concerning the child to ensure that the best interest of the child enjoys paramount importance in their decision. Statutes must be interpreted in the common law developing the manner which favours protecting and advancing the interests of children. Courts and arbitrators are bound to give consideration to the effect their decision will have on children’s lives.
22. Clause 33 of the Resolution provides that 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 or she should generally, at least demonstrate that there was conduct they denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an acceptable reasons. Or the successful candidate was dishonest and misled the interview panel or the employer.
23. Clause 36 further provides that the conduct of the employer may be substantively and/or procedure unfair. Substantive unfairness relates to the reason for not promoting the employee whereas procedural unfairness relates to unfair process applied by an employer during the course of the recruitment and selection process. As soon as the promotion has been made by the employer, employer becomes responsible for the unfair conduct of the school governing body committed during the process leading up to the promotion.
24. Clause 39 further provides that the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relates to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of the discretion.
25. Clause 40 provides that where the employee complains that another employee was promoted, he or she must show that he or she has the necessary skills; and the person who was promoted does not possess the same or same level of skills.
26. Clause 51 provides that our courts have held that strict compliance with the guidelines for appointments provided for in PAM and ELRC collective agreements is not necessary. Substantial compliance is sufficient.
27. Clause 58 provides that only where an employee has proved that he/she was the best of all the candidates who applied for the post and that he/she would therefore have been appointed, had it not been for the unfair conduct of the employer, will there be substantive unfairness and may the arbitrator grant substantive relief.
28. Clause 59 provides that once the applicant has proved that he was the best of all the candidates who applied for the post, the arbitrator is entitled to appoint him or her to the post. It is a gross irregularity fawn and arbitrate to appoint an applicant in a promotional dispute where the applicant has not proven that he was the best of all the candidates who applied for the post and that he would in fact have been appointed had it not been for the unfair conduct by the employer.
29. Clause 65 provides that 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. However, this is a remedy that must be applied with great caution in the education sector as indiscriminate use of it may result in instability at schools, which in turn may negatively impact on the best interest of the learners at the school. Unless an applicant can demonstrate that he has a realistic chance of being appointed should the process be repeated in a fair manner, it is pointed to set aside the process and direct that it must be repeated. Where an applicant based on his qualification experience as contained in his job application and curriculum vitae, Claire is not one of the best candidate but in fact one of the weakest candidate, he does not stand a realistic chance of being appointed should the process be repeated. It would then be pointless to repeat the process.
30. Clause 71 deals with compensation provides that where an arbitrator decides to award compensation, and the applicant has not proved that he was the best of all the candidates, then compensation is solely aimed at compensating the employee for non-patrimonial loss. Where the loss in an unfair labour practice dispute is of a non-patrimonial nature, compensation is in the form of solatium (meaning solace money to save injury feelings and sentimental loss) for the loss of a right, or put differently, to compensate for injuria of being treated unfairly.
31. The applicants have failed to persuade me that the Principal, Mr Van Rooyen had influenced the other panel members to recommend the incumbent to the prejudice of the applicants. Ms Gerber the chairperson of the SGB testified that Mr Van Rooyen did not influence the other panel members as to them scoring the candidates. The applicants have also failed to prove but for the procedural deviation from PAM they would have been promoted. Finally, the applicants have failed to demonstrate how the deviation from PAM considering the fact that the principal, Mr Van Rooyen perform two functions, departmental representative and interview committee member (principal) who is assessing prospect of candidates had prejudiced them.
32. As to the relief seeking to set aside the appointment of the incumbent, should I be wrong as to determining prejudice suffered by the applicants, I do not believe that it would be in the best interest of the learners to set aside the appointment of the incumbent and direct the process to be redone.
33. I find that the Respondent, Department of Education–Eastern Cape had not committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in the promotion process when they appointed the incumbent, Ms Osborne at Westview Special School as HOD in that they have failed to prove that but for deviation from PAM they would have been appointed in the place of the incumbent. The applicants have further failed to prove that the deviation from PAM prejudice them.
34. Therefore, the applicants are not entitled to any relief.
Name: Jonathan Gruss