Case Number: PSES 345-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Stemele , M
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the District Office of Department of Education, Cradock
Award Date: 12 December 2019
Arbitrator: Hadley Saayman
Case Number: PSES 345-19/20EC
Panelist: Hadley Saayman
Date of Award: 12 December 2019
In the ARBITRATION between
NAPTOSA obo Stemele , M
Department of Basic Education – Eastern Cape
Applicant’s representative: Adv. G Saayman
Applicant’s address: 28 6th Avenue
Telephone: 041- 364 0399
Respondent’s representative: Mr X Sam
Respondent’s address: Department of Education-EC
Private Bag X0032
Telephone: 040 608 4540
Telefax: 040 608 4313
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act (LRA) for 22 November 2019 at the District Office of Department of Education, Cradock. The Applicant was represented by Adv. G Saayman an Officer of NAPTOSA and the Respondent was represented by Mr X Sam, a Labour Relations Officer. The hearing was digitally recorded.
ISSUE TO BE DECIDED
2. I am required to determine whether or not the Respondent committed an unfair labour practice as contemplated in terms of Section 186(2) of the LRA by not shortlisting the Applicant for the vacancy of Education Development Officer (EDO) as advertised in Vacancy Circular 23 of 2018 , with closing date 31/12/2018.
BACKGROUND TO THE ISSUES
3. The Applicant is currently permanently employed as a Deputy Chief Education Specialist (DCES) by the
Department of Education and based at the District Office in Cradock. The vacancy for an Education
Development Officer (EDO) was advertised in Vacancy Circular 23 of 2018, with closing date
4. The Applicant applied for the vacant position of EDO, but was not shortlisted.
5. Regarding relief, the applicant seeks compensation.
SURVEY OF EVIDENCE AND ARGUMENT
6. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
7. The Applicant, Mr Monde Stemele testified that he holds the following qualifications: BA, HDE (Higher Diploma in Education) and BEd degree. He started teaching in1992. He was a School Principal at Mtalo Senior Secondary School (P3) from 2001 until 2007. He had an average matric pass rate of 82,6 %. From 2007 until 2008 he was assisting as School Principal at Matthew Goniwe Senior Secondary School (P4) that had a matric pass rate of 92,6%. In 2009 there was political interference and he was a displaced Principal until he was deployed as a DCES (Labour Relations) to the Cradock District Office. He claimed that the Department was not consistent when they shortlisted and appointed EDOs. He stated that Ms N G Ndidi started as a teacher and was promoted as a School Principal (P2) on 7 October 2014. The Department of Education shortlisted her and duly appointed her as an EDO with effect 1 July 2019. He submitted that Ms Ndidi did not qualify to be appointed as an EDO. He stated that he qualified to be shortlisted for the vacancy.
8. The Respondent called only one witness, Mr Makosandile Matunda, a Senior Education Specialist (Human Resources Planning). Mr Matunda testified that there were sixty-three (63) applications for six (6) vacancies in the Inxuba Yethemba district. There were three (3) rounds for the shortlisting process. The first (1st) round was checking of the minimum requirements as stated by the advertisement. During the second (2nd) round the bar was raised as follows:
• 20 years of teaching experience
• Computer literacy
• Large schools.
• Performance of the school
Round three (3) was recruiting principals of top performing schools. After thorough scrutiny only eighteen (18) candidates remained. The Applicant lodged a grievance and the Respondent advised that when the bar was raised, the Applicant should have been a principal for three (3) consecutive years of a top performing school.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Section 186(2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: (2) “Unfair labour practice” means any unfair act or omission that arises between an employer and
an employee involving —
(a) unfair conduct by the employer relating to the promotion, demotion, probation (ex-cluding disputes about dismissals for a reason relating to probation) or training of an em-ployee or relating to the provision of benefits to an employee;…
10. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
11. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the Act.
12. The Applicant submitted that the Respondent’s conduct has denied him a fair opportunity and thereby prejudiced him in presenting his candidature for the advertised position as Education Development Officer (EDO).
13. The Applicant submitted that he met the minimum requirements to have been shortlisted for the advertised post.
14. The requirements stated in the advertisement were inter alia as follows:
• 8 years minimum teaching experience
• 5 years minimum management experience as a Principal of a top performing school
• Registered with SACE
• Hands on experience and knowledge of teacher development and curriculum policy implemen-tation practices
• A sound knowledge of CAPS
• Proven experience of leading and co-ordinating school improvement projects
• Ability to work independently as well as in a team
• Good communication skills
• Computer skills
• A valid driver’s licence
15. The Applicant submitted that the Respondent was not consistent in the shortlisting and appointment process when it shortlisted and appointed Ms N G Ndidi as an EDO. It was common cause that Ms Ndidi was a principal (P2) of a relatively small school for only four (4) years and eight (8) months be-fore she was appointed as an EDO by the Respondent. It was common cause that the Applicant was a principal of top performing schools for about seven (7) years. It was also common cause that the Applicant qualified for most of the criteria as set out in the advertisement. The Respondent con-ceded that Ms Ndidi should not have been shortlisted, since she did not qualify in terms of the re-quirements as per the advertisement or the minutes of the shortlisting process.
16. In Ga-Segonyana Local Municipality v Venter N.O. and Others (JR961/13)  ZALCJHB 391; (11 October 2016) the Court held that the factors to be considered whether or not the employer had acted fairly are the following:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer;
• or whether the employer’s decision was motivated by bad faith,
• was arbitrary, capricious, unfair or discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• or was taken in a biased manner;
• whether the employer failed to apply its mind to the promotion of the employee;
• or whether the employer failed to comply with applicable procedural requirements related to
17. It was common cause that the minutes of the shortlisting process did not state that three (3) consecu-tive years as a principal of a top performing school would be the period from 2016 until 2018.
18. The Applicant further submitted that the non-compliance with the recruitment protocol and procedures has unfairly prejudiced him and that there is a causal connection between the unfairness complained of and the prejudice suffered by the Applicant.
19. The Applicant also argued that changing the requirements of the Bulletin was arbitrary as well as the
inconsistency of the Respondent’s conduct was grossly irregular.
20. The Respondent could not rationally justify the elimination of the Applicant’s application for the vacan-cy as EDO. The argument of the Respondent that the Applicant did not meet the criteria of being a principal for three (3) consecutive years at a top performing school does not take the matter any fur-ther.
21. The judgment in Ncane v Lyster, 2017 38 ILJ 907 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. It also highlights the requirements that employers must comply with so that not promoting a candidate for promotion would be viewed as fair by the labour tribunal or court.
22. In the matter of Noonan v Safety and Security Sectoral Bargaining Council and Others (PA 1/11)  ZALAC 9 (1 June 2012) , the Labour Appeal Court held that material errors in the recruitment process will render the process unfair, whether or not the decision to appoint can be rationally justified.
23. The scheme of the LRA requires of the employer to adduce evidence “that is sufficient to persuade a court, at the end ... that the claim or the defense, as the case may be, should succeed”. As has be-come apparent from Edcon Ltd v Pillemer NO (2010) 1 BLLR 1 (SCA), it is not sufficient to rely on general statements made without providing supporting evidence and putting material in front of the de-cision maker to ensure that he or she reaches a reasonable decision.
24. Considering the evidence and submissions in totality, I am of the view that the Respondent’s conduct has denied the Applicant a fair opportunity and thereby prejudiced him in presenting his candidature for the advertised position.
25. It therefore follows that the Respondent has committed an unfair labour practice as envisaged by sec-tion 186(2) of the LRA.
26. The Applicant is entitled to the relief sought.
27. In deciding on just and equitable relief, I must have regard to the circumstances in totality, the salary the applicant earned, the unfair conduct of the respondent in eliminating the applicant without having regard to his right to due process and fair labour practices.
28. The Applicant is entitled to compensation in the amount of R 105 807,79 (One Hundred and Five Thousand Eight Hundred and Seven Thousand Rand and Fifty-Eight Cents) [which is the equiva-lent of 2 months’ salary: R 52 903.79 x 2].
29. The Respondent, the Department of Basic Education has committed an unfair labour practice as con-templated by Section 186(2) of the LRA by not shortlisting the Applicant for the advertised position of Education Development Officer.
30. The Respondent, Department of Basic Education is ordered to pay the Applicant, Monde Stemele the amount of R 105 807,79 (One Hundred and Five Thousand Eight Hundred and Seven Thou-sand Rand and Fifty-Eight Cents) [which is the equivalent of 2 months’ salary: R52 903.79 x 2] by no later than 20 March 2020. The afore-mentioned amount will be subjected to the normal statutory deductions.
31. The Head of The Department of Education-EC, (HOD) must ensure that payment be effected to the Applicant, Monde Stemele (persal no. 52144160) by no later than 20 March 2020.
Commissioner: Hadley Saayman