Case Number: PSES 769-18/19 FS
Province: Free State
Applicant: Ms. L Damoense
Respondent: 1st Respondent Gauteng Department of Education – Free State and 2nd Respondent C Botha
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Fezile Dabi Education District office, 23 Totius Street, Sasolburg.
Award Date: 27 February 2020
Arbitrator: Mathabo Makwela
Case Number: PSES 769-18/19 FS
Commissioner: Mathabo Makwela
Date of Award: 27 February 2020
In the ARBITRATION between
Ms. L Damoense
Gauteng Department of Education – Free State
Union/Applicant’s representative: Adv Kilowan
Respondent’s representative: Mr. V Gubuza
DETAILS OF PARTIES AND REPRESENTATION
1. The arbitration proceedings were concluded on 03 February 2020 at Fezile Dabi Education District office, 23 Totius Street, Sasolburg.
2. Antonette Damoense (herein after “the applicant”) was in attendance and was represented by Adv C Kilowan while the Department of Education -Free State (herein after the “first respondent”) was represented by Mr. Vusi Gubuza its industrial relations manager. C Botha, (herein after “the second respondent”), was also in attendance.
3. The proceedings were digitally recorded and typed-written notes were also taken. Interpretation services were not required.
BACKGROUND TO THE DISPUTE
4. This is a promotion dispute involving post number 196402/208a. Fakkel Special School Sasolburg (Fakkel School), being the post of head of department, post level 2, orientation 1 + 2.
5. The parties are Lorna (the applicant) and the (the first respondent) and Ms C Botha (the second respondent). The applicant was appointed by the respondent on 01 February 2000 in the position of an Educator PL1 and earns R22 000 per month. The applicant had referred an alleged unfair labour practice dispute relating to appointment. She contended that the respondent had committed an unfair labour practice against her when she was not shortlisted for a head of department post or that of a deputy principal. The respondent had informed her that she did not meet the minimum requirements to be shortlisted since she did not have managerial experience. She contended that the listed criteria on the advertisement was managerial experience, extra mural activities and LSEN certificate or experience. She complied with the set criteria.
6. She also contended that one observer, Boshoff, played an integral role in the process against the dictates of the collective agreement and accordingly she sought that the shortlisting process be declared null and void and restarted.
7. On the other hand, the respondent stated that the applicant did not meet the requirements at the second sifting level and that the panel was constituted in line with collective agreement 9/2012 which provides for guidelines in the advertisement and filling of positions at schools. It denied that there was any unfairness in the shortlisting process.
8. The applicant challenged the procedural and substantive fairness of her non-shortlisting for the position. As regards procedural fairness challenge, she challenged the composition of the panel as in the number of parents against the number of school personnel; the nature of the expertise of the personnel relative to the position to be filled; the non-compliance with collective agreement P010/2012; the successfully-shortlisted candidates scored less than her and that a panel member had failed to disclose that he knew the successful candidate. In as far as substantive fairness challenge was concerned, she contended that the collective agreement provides that those meeting the minimum requirements will be submitted for shortlisting process except when one has not properly completed the application and that the panel set its own minimum requirements as opposed to the only requirement of three years’ experience.
ISSUE TO BE DECIDED
9. The issue to be decided is whether the respondent had committed an unfair labour practice when it did not shortlist the applicant for an interview, and if so, to award appropriate relief.
SURVEY OF PARTIES EVIDENCE AND ARGUMENTS
The Applicant’s Case
Lorna Antonette Damoense (Lorna)’s evidence under oath:
10. Lorna testified that she is a pots level 1 educator at Fakkel Special School Sasolburg (Fakkel School). She has 27 years of teaching experience of which 19 years had been spent at Fakkel School. She applied for orientation 1 and 2 head of department post as advertised. The principal had announced the post in school and had informed them that they could submit their CVs and she applied for the post. The other candidates for the position were Brits and North Code. The criteria for shortlisting was as per page 16(a) 3.1 and 3.2. She met the criteria requirements of the post and also had project management experience since she had managed a project in 2010-2015 as per page 22(a). Page 23 of A are her completed courses and achievements.
11. She was not informed that she was not shortlisted for the interview and had gone to the principal to make inquiries. The principal informed her that she did not meet the criteria. Mr. Pretorius, deputy principal, came to her class and showed her the score sheet on page 30 and informed her that she did not meet the criteria. Page 30 of A, the score sheet shows that she obtained 60% while page 38 of A is the criteria that was used for the shortlisting. On page 16(a) the criteria used in page 38 was not there. Page 29 of A is a letter from Pretorius and the criteria is not on page 16 (a). NJ Pretorius was a deputy principal, Ms. I Smit is the psychologist, Ms. C M Engelbrecht is an occupational therapist while L D Loftus & Motaung are parents.
Under cross-examination Lorna testified that:
12. When she submitted her CV to the principal, it was for the acting post and not the post in dispute. The list on A15 talks to the minimum qualifications and experience for all the advertised posts and the requirements are generic to all posts. All the application forms that went to the school met the minimum requirements. Sifting is done by the district and not the school. She understood that there were criteria for sifting and that the minimum requirements were used. However, she met the criteria to be shortlisted as she had managerial experience. She felt that she was discriminated against because she was not given a chance to act in the position.
13. Her application form represented her in the shortlisting process and the panel could not have used what was not contained in the application form, CV and qualifications but she had managerial experience in managing a project and was a subject head though she did not put them anywhere. In terms of her CV, she did not have a head of department experience of subject head but she was a subject head and did not expect anyone to be reminded that she was one. In terms of A21 as per her CV, she never had experience as subject head or acting head of department. It was not in her CV. She, however, indicated in her CV that she had extra mural activities experience. She did not state in her CV that she had LSEN experience or certificate in special needs but she was currently at Fakkel School. The latter is the only special needs school in Sasolburg. She did not feel that her CV was incomplete when she applied for the post. She mentioned in her professional summary on A22 her work experience in teaching or working in LSEN. She denied that in terms of her CV she only met the criterion of extra mural activities. She did not feel that she sold herself short and had hoped that the panelists would fill up the gaps.
Sonja Barnard (Sonja)’s evidence under oath:
14. Sonja testified that she works with the applicant at Fakkel School and she was the acting head of department when the post was advertised. She also applied for it. Pretorius, Smit, Engelbrecht, Loftus, Van der Walt and Motaung conducted the internal interviews. Botha was the successful candidate.
Under cross-examination Sonja testified that:
15. She had come to testify that Botha and the other panel members knew one another before the interview. She knew Botha from years ago when she was a student in the school doing practicals. Engelbrecht and Smit also knew Botha from that time. She was not party to the shortlisting process but knew that Engelbrecht, Smit and Pretorius were part of the shortlisting as she had heard that from other people. She knew that Smit and Engelbrecht knew Botha because they worked with her at Fakkel School
16. It is possible that Smit and Engelbrecht knew the applicant more than they knew Botha because they worked longer together. Favoritism would have depended on a lot of things, for example, if they had worked nicely together or liked each other.
17. There were stories that Smit and Botha visited each other prior to the interviews. Smit, Engelbrecht and Botha had a collegial relationship. The applicant had a collegial relationship with Smit and Engelbrecht.
Gideon Jannasch (Gideon)’s evidence under oath:
18. Gideon testified that he is the senior education specialist based in inclusive education at the Fezile Dabi education department district office. He previously worked at Fakkel School as a deputy principal for 14 years and had experience in the shortlisting of educators. Only candidates meeting the minimum requirements are shortlisted as per general practice. In terms of clause 4.1.4 a minimum of three members (exclusive of the principal, the resource person and representative of the teacher organisation) are observers without voting rights.
19. In his experience, a minimum of three candidates can be shortlisted or a re-advertisement can occur. The guidelines set out the criteria, however, the panel members can include their own criteria as well. In terms of page 35 of A, the document has to be sent to the school with the list of shortlisted candidates. The applicant was shortlisted and experience was relevant. The top five ranking candidates will be invited for interviews. In terms of A39 five high scoring candidates had to be invited for interviews. The applicant was the top scoring at 60. Botha had scored 59.
Under cross-examination Gideon testified that:
20. He was not part of the shortlisting for the position in question but was asked by the principal to be part of the departmental representative. The criteria for shortlisting was not fair. It was discriminating people who did not have managerial experience as subject head or acting head of department. All criteria are discriminatory and the only difference is whether the criteria is fair or not. He disagreed that the criteria on page 38 of A was fair because all educators stood a chance to apply. All candidates have to be scored and all applications meeting the minimum requirements must be scored. He refused to answer to the question that if in terms of the shortlisting criteria if one is not meeting the shortlisting criteria it does not mean that one would not have been sifted out.
The Respondent’s Case
Ilse Smit (Smit)’s evidence under oath
21. Smit testified that panel members got together to conduct the short listing. They decided on the criteria for shortlisting and then started with shortlisting by working through all the CVs. After the shortlisting they did the scoring. On the basis of the criteria they shortlisted. It is possible that the applicant was sifted out. The applicant was not scored by the shortlisting panel. Page 30 of A is a score sheet and it was not part of their process. At the bottom of page 30 of A, the score sheet dated 16 October 2018 the chairperson was Boshoff and the secretary signed it. The date must be after they had their shortlisting. Botha was an educator at her primary school and herself and others arrange learners who have to be assessed. Botha brings the learners to her and also attends their open days. She never visited Botha in her home. She never did Botha any favour. The applicant obtained 60 out of 100. The criteria used was one on page 38 of A and there was no weight attached to the criteria. Van Dyk scored 43, Gouse 53; Brits 63, Moganyele 78 and Botha 59.
Under cross-examination Smit testified that:
22. She has never seen page 30 of A, the score sheet and the date 16 October 2018 could have been after the shortlisting. Page 37 of A has her names and is dated 16 October 2018. She could not remember the candidate that was sifted out. They divided the candidates CVS amongst the panelists and thereafter accepted or declined them. They only scored candidates who met the criteria. Moganyele, Brits and Botha were interviewed though the latter scored lower than the applicant.
23. She knew Botha from her previous school as she would bring children for evaluation. She would do so twice a year in a period of three years that she had known her. Candidates were not discussed. Everybody in the panel knew the applicant. The latter was not sifted in as she did not meet the criteria. Upon questioning by me she testified that during the shortlisting the panel decides on the criteria and decide whether the candidates meet the criteria or not. Scoring is done only for the candidates who meet the criteria.
Theodorus Johannes Boshoff (Boshoff)’s evidence under oath:
24. Boshoff testified that he is the principal of Fakkel School and represented the department in the shortlisting panel. He knows the applicant who was not shortlisted for the position. The applicant was not scored because she did not meet the criteria. Only the candidates who met the criteria were shortlisted. Page 30 of A was the score sheet signed by the chairperson of the panel. The score sheet was done in his office because the applicant had asked for the reason for her not been shortlisted. The score sheet did not impact the shortlisting. He could not remember if the applicant was aware that the scoring was done after the shortlisting. The applicant did not meet the criteria that was done outside the shortlisting process. He was not aware of the applicant’s score before the shortlisting.
Under cross-examination Boshoff testified that:
25. The letter on page 28 of A is dated 26 October 2018, the shortlisting took place on 16 October 2018 and the candidates were scored on 16 October 2018. The letter from the applicant asked for the breakdown of her score and he had told the applicant that she did not meet the score. He confirmed the testimony of the applicant and Engelbrecht that page 39 of A was the scores of the different candidates and there was a decision that those who scored more will be shortlisted. The shortlisting took place on 16 October 2018.
26. It was him and Pretorius who prepared page 30 of A, the score sheet. The applicant was not present and was not invited when they entered the marks. The applicant received the scoring from him on 22 October 2018 and he could not remember who gave the scoring sheet to the applicant. It may have been both of them that did but they did not tell the applicant that the scoring was done on 22 October 2018. He agreed that when he did not tell the applicant that the scoring was done on 22 October 2018, the applicant would reasonably assume that it was done on 16 October 2018. He had no comment to the question that the creation of page 30 of A, the score sheet was part of a scheme to visit injustice on the applicant to throw her out of the race for the position.
27. The school governing body does not have the right to change the collective agreement no.1 of 2012 nor to ignore it. In terms of the sifting process, only those who meet the minimum requirements of the post as advertised go through to interviews. The applicant met the minimum requirements of the post as advertised. The department has not sent them applications of people who did not meet the minimum requirements of the post.
28. The criteria applied on 16 October 2018 was as per page 38 of A (managerial experience as a subject head or as an acting head of department, Indication of extra mural activities and LSEN experience or certificate in special needs). It was not in the CV of the applicant that she was a subject head. It was in the applicant’s CV that she was engaged in extra mural activities and that she had special needs experience. The only criteria that kicked her out was management experience. In terms of page 27 of A, the applicant had a further diploma in education and she had stated that the further diploma was attached to her application. He did not know that the applicant had a diploma in management. He could not remember if one criterion weighted more than the other and that if one did not meet all the criteria that one would be out of the contest.
ANALYSIS OF PARTIES EVIDENCE AND ARGUMENTS
29. The applicant has referred an alleged unfair labour practice dispute in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 in which she seeks the appointment of the successful candidate, the second respondent in this matter, to be set aside and for the Department of Education in the Free State to be directed to conduct the process for the selection of the successful candidate afresh. I have considered the evidence and arguments of the parties in reaching the conclusion. I don’t intend to repeat the evidence and argument but only to deal with the salient points.
30. The applicant bears the onus of proving the claim of unfair labour practice on a balance of probabilities. In is an established principle from our Courts that selection and promotions falls within the managerial prerogative and it is important to understand that for this reason arbitrators are not required to determine whether the employer has made the correct decision and has appointed the best candidate, but merely to determine whether the employer has acted fairly and has made a reasonable decision.
31. In SAPS v SSSBC, Robertson NO and Noonan Cheadle AJ had summarised the principles relating to promotion as follows;
• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion.
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that 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.
32. In terms of PAM and Resolution 5 of 1998, a candidate who does not meet the minimum advertised requirements must be eliminated at the sifting stage by the department of education and his or her application should not even be handed over to the school governing body for consideration.
33. In this matter it is to be noted that Boshoff testifying on behalf of the first respondent conceded that the applicant met the minimum requirements to be shortlisted for interviews. No plausible explanation was put forth on why the applicant was not called to the interviews and to compete fairly with the other candidates that had been invited for the interviews. It is also baffling that the scores determined that the candidates be shortlisted for the interviews but that the panel invited candidates that scored below the applicant to the interviews to the exclusion of the latter who had scored 60%. Worse, one candidate scored 43 but was given an opportunity for an interview and the applicant was denied. Even the successful candidate scored 59% but was shortlisted for the interviews to the exclusion of the applicant.
34. The evidence pointed to the fact that the applicant’s application was not considered by the panel. It was only after the applicant had sought reasons for her not being shortlisted that Pretorius and Boshoff scored her on 22 October 2018 when everyone was scored on 16 October 2018. It is at this stage that the panel could have realised that it had unfairly overlooked the applicant for shortlisting for interviews and had, therefore, acted capriciously. The 60% achieved by the applicant was an indication that she met the minimum requirements for the shortlisting for interviews. The scores for shortlisting were important in this regard because it was on the basis of the score that candidates qualified for shortlisting. As I alluded to above, it baffles my mind why someone who obtained 43% can be a good candidate for interviews while someone who obtained much higher than that person has her application declined for interviews.
35. I agree with the applicant’s representative that the first respondent’s witnesses fabricated evidence as the matter went along to try to justify the exclusion of the applicant. A concession that the applicant had management training which could not have been seen when the shortlisting happened, constitute gross unfairness to the applicant. It could not have been that the first respondent could not have noticed a qualification in management that was attached to her application. Furthermore, it could not have been that the first respondent would not have known that the applicant had experience at an LSEN school since she has been teaching at that school for more than three years required as part of the minimum criteria. In fact, neither Boshoff nor Pretorius knew which of the criterion weighted the most in excluding the applicant and comparing her to the other candidates, and in particular the second respondent. This makes the version of the applicant more probable that the first respondent sought to visit injustice and unfairness on her by excluding her from the interviews and that no valid, fair or plausible explanation existed for her exclusion.
36. If it was the “not high enough score” that excluded the applicant from being interviewed, this is fatally flawed. This is so because those who obtained lower than her were interviewed, and in fact, ultimately appointed. It makes it not a far-fetched version that there was a close relationship between the panelists and the second respondent that had influenced the exclusion of the applicant and ultimately the appointment of the second respondent. If the experience of being a subject head or a head of department was used, I believe it was only in relation to the applicant. No evidence was led that those that were shortlisted had that experience and the weight attached to that criterion. It is also not explained how the applicant with lack of such experience would have scored higher than those that were interviewed, assumingly having the experience that the applicant did not have, and ultimately appointed.
37. Based on the aforegoing, I find that the first respondent had committed an unfair labour practice against the applicant when it excluded her from the shortlisted candidates for the interview of the post in question. The applicant has sought relief in the setting aside of that process and I find no reason not to grant same. The applicant has demonstrated a realistic chance to be appointed should the process be repeated. I have conceded that repeating the process might disrupt the smooth operation of the school; that this may have a negative impact on the second respondent and also on the school. However, fair treatment on the applicant outweighs the negative impact that this may cause to the second respondent.
38. The first respondent’s conduct denied the applicant an opportunity to compete for the post. There was no justifiable and fair reason for the exclusion of the applicant for interviews and the first respondent had acted capriciously, arbitrary and grossly unfair in the exercise of its discretion. Repeating the process must be done in such a way that it causes little or no disruption to the learners.
39. The first respondent had committed an unfair labour practice when it excluded the applicant from the shortlisted candidates for interviews in the vacant position of head of department, post level 2, orientation 1 + 2 , post number 196402/208.
40. The process and appointment of the second respondent is set aside and the first respondent is ordered to conduct the process of only the interviews afresh. Such interviews must include the applicant as a candidate.
41. The process in paragraph 40 above must be concluded on or before 01 May 2020.
42. There is no order as to costs.