Case Number: PSES561-16/17NW
Province: North West
Applicant: ROFHIWA MASALA
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Dr. Ruth Segomotsi Mompati District Office in Vryberg – North West
Award Date: 5 December 2019
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: PSES561-16/17NW
Dates of Hearing: 17 October 2019
Date of Arguments: 25 October 2019,
01 November 2019 & 05 November 2019
Date of Award: 05 December 2019
In the Arbitration Hearing between
ROFHIWA MASALA APPLICANT
DEPARTMENT OF EDUCATION – NORTH WEST RESPONDENT
Mr M. Maseda
Tel: 012 867 8797
Fax: 086 516 0223
E-Mail Address: email@example.com
Respondent’s representative: Ms B. Phuswane
Telephone: 018 388 3384
Fax: 018 388 1703
E-Mail Address: firstname.lastname@example.org
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award for an alleged unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended. This matter was set-down for arbitration on 17 and 18 October 2019 at Dr. Ruth Segomotsi Mompati District Office in Vryberg – North West under the auspices of the Education Labour Relations Council (“the Council”).
2. The applicant, Mr Rofhiwa Masala, was in attendance and he was represented by Mr S. Maseda, an Attorney from Maseda S Attorneys. Ms B. Phuswane represented the respondent, the North West Department of Education. A pre-arbitration meeting was held on record and the parties agreed this dispute was a dispute of law rather than of fact. Therefore, they requested to submit written heads of arguments to argue their respective cases. The applicant party was to submit first on 25 October 2019. The respondent was to respond on 01 November 2019. Then the applicant was to reply on 05 November 2019. The parties have duly complied with the time lines as agreed upon.
ISSUE/S TO BE DETERMINED
3. I am enjoined in these proceedings to determine whether or not the respondent subjected the applicant to an unfair labour practice by not appointing him to the principal post.
4. In determining this dispute, I am required to consider which Personnel Administrative Measures (“PAM”) between PAM of 1999 and PAM of 2016 was applicable at the time of the advert.
5. The respondent advertised a principal post in the Departmental Circular No 5 of 2016 (“the Circular) dated 11 February 2016. The Circular was signed off on 15 February 2016 by the Head of Department. The applicant applied for the position as advertised. He was shortlisted, interviewed and the School Governing Body (“the SGB”) recommended him for appointment in the position. However, the Office Area Manager overturned the SGB recommendation in a meeting held on 13 October 2016 and instead, another candidate was appointed. The applicant challenged the decision of his non-appointment in the position through internal processes. The applicant did not find joy in the outcome of the internal process and he referred the alleged unfair labour practice dispute to the Council. The matter was arbitrated and an award was rendered on 20 June 2017 where the applicant’s claim was dismissed. The applicant referred the matter to the Labour Court for a review through section 145 of the LRA. The award was set aside and remitted back to the Council for a hearing de novo.
6. On the date of the arbitration (17 October 2019), a pre-arbitration meeting was conducted. The parties agreed that the applicant had six (6) years’ experience at the time the post was advertised. The issues that were in dispute were:
The applicant argued that the Circular print date was 11 February 2016 and the new Personnel Administrative Measures (“PAM”) was 12 February 2016. Therefore, the old PAM of 1999 was applicable to the post.
Whilst the respondent argued that the post was advertised on the sign off date by the Head of the Department being 15 February 2016. Therefore, the new PAM of 2016 published on 12 February 2016 was applicable to the post.
7. The applicant sought compensation as a relief as he was no longer in the employ of the respondent.
SUMMARY OF ARGUMENTS
8. The parties have exchanged their written heads of arguments and thus they were privy to each other’s submissions and arguments. Therefore, I do not find it necessary to summarize their respective submissions and arguments in this award. However, my analysis is based on their respective arguments with regard to the applicable PAM (1999 and / or 2016), the applicable collective agreements and the provisions of the law.
ANALYSIS OF ARGUMENTS
9. This is an arbitration award issued in terms of section 138(7) of the LRA with my brief reasons.
10. The factual matrix of this dispute turns around the principal post (2016/156) that was advertised in the Circular. It is common cause that the applicant applied for this post. It is common cause that the applicant was recommended by the SBG as the successful candidate for this post after the shortlisting and interview processes. Unfortunately, the applicant was not appointed following a meeting that was held on 13 October 2016. The reason that was advanced by the Office Area Manager in that meeting was that the applicant did not have the required years of experience for this post. This decision was based on the new PAM of 2016 published on 12 February 2016. The respondent’s argument in these proceedings was centered on the provisions of PAM 2016. On the other hand, the applicant’s argument was centered on the provisions of PAM of 1999.
11. In terms of the Circular, post 2016/156 is a P2 (See page 11 of the bundle in this regard). The experience required for post level 2 to 4 as per the Circular on page 7 of the bundle is:
Post level Minimum years of experience
2 3 years
3 5 years
4 7 years
12. The above-stated post levels and the required years of experience are in line with the provisions of PAM of 1999. The respondent’s argument that both PAM of 1999 and PAM 2016 required the same years of experience for the same post levels is misleading. In terms of PAM of 2016 (clause B.3.1.4) appointment to a graded principal post refers to a P1, P2, P3, P4 or P5 principal post. Graded posts are posts on the same post level (post level 4) with different salary ranges applicable to each post. In terms of PAM of 1999, the principal post is post level 2 to 4 requiring 3 to 5 years’ experience. Whereas, the principal post in terms of PAM of 2016 require seven (7) years of actual teaching experience (page 19 of the bundle). On the other hand, in terms of the Circular, seven (7) years was required for post level 4. Clearly, there is a material difference between the two PAMs. I am in agreement with the applicant’s argument that if it was the intention of the respondent to rely on the provisions of PAM of 2016 to fill posts in the Circular, it was prudent to issue an erratum. In the absence of an erratum, the requirements as stated in the Circular are applicable to the candidates. I therefore conclude that PAM of 1999 was applicable at the time of the Circular and throughout the process of recruitment.
13. The parties agreed in the pre-arbitration minutes that the applicant at the time he applied for the post he had six (6) years’ teaching experience. It is my considered view that the applicant was shortlisted and subsequently, interviewed because he met the required experience for the post. The SGB even went to an extent of recommending his appointment to the post as the successful candidate. The reason advanced by the respondent that the applicant did not have the seven years’ experience required to overturn the SGB recommendation was without any justification. Consequently, I find that the applicant succeeded in discharging its burden of proof and thus, he is entitled to the relief he prayed for.
I therefore find that:
14. The respondent subjected the applicant to an unfair labour practice by not appointing him to the principal position.
15. The respondent, North West Department of Education, is ordered to compensate the applicant, Mr Rofhiwa Masala, an amount equivalent to the difference between the applicant’s then notch and the notch of the P2 post that he applied for.
16. The said compensation must be calculated from the date the position in question was filled to the date the applicant left the respondent’s employ.
17. The amount in par. 16 is payable on or before 31 January 2020.
Arbitrator: Themba Manganyi