PSES 814-18/19 NW
PSES 814-18/19 NW
Award Date:
16 March 2020
Case Number: PSES 814-18/19 NW
Province: North West
Applicant: TSHEPO MOHAMED
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education, Sub-District Offices, Mafikeng, North West Province.
Award Date: 16 March 2020
Arbitrator: Kenneth Dlamini
Case No PSES 814-18/19 NW
In the matter between
TSHEPO MOHAMED Applicant
and
DEPARTMENT OF EDUCATION: NORTH WEST Respondent
ARBITRATOR: Kenneth Dlamini
HEARD: 26 February 2020
CLOSING ARGUMENTS: 05 March 2020
DATE OF AWARD: 16 March 2020
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA – whether a withdrawal of an appointment letter following an appointment into a non-existent post is unfair and constitutes an unfair labour practice for purposes of section 186(2)(a) of the LRA
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on 26 February 2020. The arbitration took place at the Department of Education, Sub-District Offices, Mafikeng, North West Province.
2. The Applicant, Ms Tshepo Mohamed was present and represented by Mr SD Molete, a full-time shop steward from the trade union SADTU. The Respondent, Department of Education, North West was represented by Mr Martin Keetile. the Respondent’s Employment Relations Practitioner.
3. The proceedings were digitally recorded.
THE ISSUE TO BE DECIDED
4. I have to decide whether or not the Respondent’s decision to withdraw the Applicant’s promotional appointment as a Deputy Principal PL 3 on the basis that the there was no existing post or vacancy at the time of the appointment constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). The relief sought by the Applicant is to be re-instated as a Deputy Principal PL 3 in accordance with her appointment letter in a different School. In turn the Respondent wants the Applicant’s application to be dismissed.
THE BACKGROUND TO THE DISPUTE
5. The Applicant is currently employed by the Respondent as a Head of Department (PL 2). by the Respondent. At time of dispute the Applicant was at Boitshoko Secondary School as a Head of Department (PL 2). In June 2018 the Applicant applied for a Deputy Principal position which had been advertised in the vacancy list of Circular Number 22 of 2018. The Applicant was thereafter shortlisted, interviewed and became the successful candidate for the Deputy Principal position.
6. On 11 September 2018 the Applicant received her letter of appointment, which was subsequently withdrawn on 12 December 2018 by the Respondent reason being that the School, Boitshoko Secondary School did not have a vacant post for a Deputy Principal according to the revised 2018 staff establishment (PPM).
7. Being aggrieved by the withdrawal of the Applicant’s appointment, the trade union SADTU referred an unfair labour practice dispute to the Council. After conciliation failed. The matter was set down for arbitration.
SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s evidence
8. The Applicant party led evidence of three witnesses including the Applicant and further submitted a bundle of paginated documents, bundle B, pages 1-24. Bundle A, pages 1-11 was submitted by the Respondent. The Respondent’s Representative stated on record that there is no need for oral evidence to be led due to the nature of the issue in dispute. The Respondent will only be disposed of the dispute through arguments.
9. The Applicant, Ms Tshepo Mohamed testified that in June 2018 she applied for a Deputy Principal position PL 3 at Boitshoko Secondary School. She was shortlisted, interviewed on 23 August 2018. On 11 September 2018 she received an appointment letter from the Respondent. (Bundle B, page 10).
10. On 09 January 2019 she was called to the Area Office wherein she was given a letter dated 12 December 2018 withdrawing her appointment for the Deputy Principal position at the School (Bundle B, page 11).
11. The Applicant stated that following her appointment two members of SGB and two members from the tribal council instructed her and Mr Zozi Deputy Principal to vacate the School premises, which they did out fear. The SGB members also advised the Respondent’s Sub-District office that her appointment was flawed as it was not catered for by the School’s revised 2018 staff establishment (PPM), in other words she had been appointed into a position which does not exist. The Applicant said the SGB action was driven by the SGB’s dissatisfaction that the SGB preferred or favored candidate had not been .successful.
12. The Applicant continued to state that prior to the interviews the School Principal, Mr Mmusi had a briefing which she (Applicant) attended. The School Principal indicated that he (School Principal) was not certain whether the School had a position of a second Deputy Principal PL at the time. The School Principal assured the staff that he was going to seek clarity from Dr Mojafi, at the Sub-District Office and for which the School Principal did, but no response was received from Dr Mojafi.
13. The Applicant argued that the Respondent’s Sub-District Office was fully aware of the scheduled interviews for the Deputy Principal position. The Applicant did not dispute that she was aware of the School’s revised 2018 PPM. She said she was not sure whether the position she had been appointed in was existing at the time.
14. After being chased out of the School she went to the office of Dr Mojafi twice. Dr Mojafi was concerned
about her ordeal and advised her to remain at home. Dr Mojafi assured her that she will be informed of
any developments thereafter including a possibility of being moved to another School in the interim.
She later met with Messrs Itumeleng and Adipha who told her that the Respondent’s legal department was handling her matter.
15. Due to lack of communication thereafter she became emotionally drained and she had to be seen by a Psychiatrist
16. The Applicant admitted having no signed the assumption of duty documentation which would have approved her appointment officially. The Applicant argued that she was denied such an opportunity to sign such documentation by the Respondent.
17. The Applicant further argued that the Respondent’s conduct was contrary or not in line with clause 8.9 of the Respondent’ Circular Number 22 of 2018 which talks about cancellation and about a withdrawal of a position.
18. The first witness of the Applicant, Mr Fezile Zozi testified that he is a Deputy Principal PL 3 at Boitshoko Secondary School and also a branch secretary of the trade union SADTU. He stated that he is aware of the dispute involving the Applicant’s appointment as a Deputy Principal as well as the subsequent withdrawal of such an appointment by the Respondent.
19. The witness went on to say that according to the 2017 PPM the School qualified to have a Second Deputy Principal. The School later received a revised 2018 PPM which did not make provision for a Second Deputy Principal vacancy or position, but the Respondent went ahead and advertised the position. He said at no stage did the Respondent indicate that the position had been erroneously advertised and withdrew the advertised. He further stated that if it was the case, the Respondent should have withdrawn the advertised position by issuing an addendum.
20. He stated that prior to the interviewing process the School Principal, Mr Mmusi did seek clarity from the Respondent’s Sub-District Manager Dr Mojafi regarding this position unfortunately no feedback or guidance was received from the office of Dr Mojafi. The School Governing Body did not question anything at the time and as such interviews were conducted. The Applicant was successfully promoted and appointed to the position of Deputy Principal (Bundle B, page 10). He said he personally collected the Applicant’s appointment from one Mr Itumeleng’s office, who at the time was Acting Sub-District Manager.
21. The witness further stated that the School at the time viewed the advertised position as a “bonus’ because there was no subsequent addendum from the Respondent withdrawing or cancelling the advertised position.
22. The witness said around the time of the interviews, although he was not acting as the School Principal he was performing most of the School Principal duties because the School Principal, Mr Mmusi at the time was also a candidate for a P5 Principal position in a different School and as such Mr Mmusi could not be involved in interviews.
23. The witness admitted that he was aware that the School did not have a vacancy or position of a Second Deputy Principal. The witness further agreed that the Applicant never signed the mandatory assumption duty documentation finally approving the Applicant’s appointment to the said position. The witness however argued that the Respondent denied the Applicant an opportunity to sign the requisite final approval documentation and by doing the Respondent’s conduct constituted an unfair labour practice relating to promotion.
24. The third witness of the Applicant, Dr Charity Molatlhwane Mojafi testified that she is the Respondent’s Sub-District Manager. She went on to say that as a Sub-District Manager she oversees more than one-hundred schools. When it comes to the recruitment process her involvement is at the end of the value-chain. She said Circuit Managers are responsible for ensuring that details regarding policy implementation are dissemination and cascading to School Principals, School Governing Bodies and Staff. She stated that Circuit Manager are always on the ground making arounds at schools in their respective jurisdiction from time to time to ensure that the Respondent’s policies and practices are complied with.
25. She said the Respondent provides each school with a revised or approved PPM (Post Provisioning Model) which clarifies the number of positions available and learner distribution. Available positions are filled according to the PPM. Prior to any interview process the PPM is checked and if the PPM does not cater for a position it means such a position does not exist.
26. Regarding the withdrawal of the Applicant’s appointment. The witness said 2018 PPM for Boitshoko Secondary School did not make any provision or the position of a second Deputy Principal (Bundle A page 1). She said the School Principal Mr Mmusi, the School Gorvening Body (SGB) and the staff members were all aware that such a position did not exist. Mr Langa who was a Circuit Manager for Boitshoko Secondary School until June 2018 went to the school and provided details to the School Principal Mr Mmusi, who in turn advised the SGB and staff members that the position of a Second Deputy Principal did not exist.
27. Mr Zozi, being Deputy Principal at the School, he seats in the task team that deals with such processes, as such Mr Zozi was aware that the School did not have such a position. At some point the witness said she met with the Applicant and for which the Applicant confirmed to her that she (Applicant) was aware that the position did not exist at the School.
28. On the day of the shortlisting the School Principal, Mr Mmusi called her. At the time she was on leave and she was driving. She admitted having promised Mr Mmusi that she will come back to Mr Mmusi, which she did not. She stated that she never gave Mr Mmusi a go-ahead.
29. She said on 18 September 2018 she attended a follow-up meeting at Boitshoko Secondary School to address issues which had been raised by the SGB. The SGB members, the School Principal, Mr Mmusi and Mr Itumeleng were in also in attendance. She did mention during the meeting that Mr Mmusi had called her on the day of the shortlisting and that she (witness)could revert to Mmusi. During the meeting Mr Mmusi admitted that no one had given a go-ahead to continue with the interviews. The witness stated that she did emphasised that Boitshoko did not qualify for a second Deputy Principal position as it was not catered for by the revised 2018 PPM, minutes of the meeting (Bundle A, pages 18 and 19).
30. The witness said the School Management Team and the SGB deliberately and intentionally misled the Respondent by colluding with the aim of causing problems for the Respondent. She said at the time Mr Zozi was the Acting Principal. There was no Circuit Manager as Mr Langa’s contract had ended and Mr Itumeleng was acting in her position. She said the Respondent’s policy does not cater for bonus positions as claimed by Mr Zozi. She argued that there was no addendum needed to withdraw the position which she believes it was erroneously advertised, hence the Respondent exercised its prerogative to withdrawn the appointment of the Applicant in line with clause 8.9 of Circular Number 22 of 2018.
31. She went on to say that she also refused to sign the last two required documentation which would have approved the Applicant’s appointment namely the annexure and the assumption of duty. She argued that had she been in the office she would have got hold of the Applicant’s letter of appointment. She said upon her return to the office the Applicant’s appointment had been released my Mr Mmusi.
APPLICANT’S ARGUMENTS
32. On behalf of the Applicant, Mr SD Molete submitted the following closing arguments. He submitted that The matter between the Applicant and the Respondent is very emotional one in the sense that the Respondent does not show any kind of remorse towards the Applicant. It is as if making a mistake is something that is normal and needs to be accepted easily.
38. He went to submit that the following issues were placed in dispute namely;
• Whether the Respondent has the authority to withdraw a post after an appointment has been made.
• Whether it was fair for the Respondent to reverse or withdraw the Applicant’s appointment of being a Deputy Principal PL 3 at Boitshoko Secondary School.
• Whether the Respondent was not aware that the School did not have a vacancy before the Applicant could be appointed.
39. The Respondent could not be able to furnish the Applicant party with an existing authority which supports the conduct of the Respondent. Under normal circumstances, when an error is committed, it should be detected before the appointment is done in terms of the guidelines for the process of filling vacant posts. The Respondent was supposed to have withdrawn the post and not the appointment once the appointment has been made. The Respondent should have at the very least transferred the Applicant to an existing PL 3 vacant post in another School.
40. The Applicant was chased out of Boitshoko Secondary School by the SGB members. The Applicant was thereafter placed in another School which had a PL 2 post.
41. It is also procedurally unfair that the Applicant’s appointment was withdrawn after four months. The Applicant was appointed on 05 September 2018. The Respondent claims to have withdrew the Applicant’s appointment on 12 December 2018. Whereas the Applicant was only made aware of the withdrawal in Mid-January 2019.
42. The PPM was lying in the offices of the Respondent and it was clear that the post did not exist, the Respondent ignored its own means of communication and failed to communicate that the post was not existing at Boitshoko Secondary School. Why now should the Applicant be made a victim and suffer the consequences of a situation which was created by the Respondent.
43. He argued that it seems that it is a norm that educators will be made to suffer for the mistakes which they have not committed. The fact that the SGB that alerted the Respondent’s district office of this kind of malady is a clear indication that the Respondent continued with the process knowingly that the process was flawed.
44. The Applicant’s second witness, Mr Zozi admitted that the School was aware that it did not have the post, hence the School Principal sought guidance from the Respondent’s Sub-District Manager who admitted having not reverted to the School Principle because she was not keen to communicate with the School Principal given that the School Principal was also a candidate for a P5 School Principal post.
45. It is the SGB that reacted upon the appointment of the Applicant which shows that the SGB itself had a vested interest in the process. Applicant received the appointment letter on the 11 September 2018. On 13 September 2018 the SGB members chased out or removed the Applicant from the School’s premises. The Respondent remained silent up until the SGB members alerted the Respondent about the appointment of the Applicant. That in itself is indicative that the Respondent did not have a problem though the post did not exist.
46. School principals are aware of protocols in terms of communication channels in the department, so the principal could have directly communicated with the immediate senior, who is the Circuit Manager. It is therefore disputed that the Sub-District Manager had assigned a Circuit Manager for the School around the interviewing process following the departure of one Mr Langa, otherwise the School Principal would have not communicated with the Sub-District Manager at the time seeking guidance.
47. It is also disappointing to learn that the revised PPM was issued on 20 March 2018. The gazette (Circular 22 of 2018) was issued on 14 June 2018 and that the interviews was conducted on the 23 August 2018 the day after the clarification in regard to continuing with the process or not was sought for from the Sub-District Manager. The verification process on the recommendations by SGB after the interview was done and was presided over by the Sub-District Manage (Dr Mojafi). The appointment letter was issued on 11 September 2018 and the Applicant was made to sign the confirmation letter the same day. All the processes were done in the face of a non-existent post wherein an appointment made was subsequently withdrawn four months later which in itself put the conduct of the Respondent under serious doubt.
48. The Applicant had to undergo a tedious process towards the interviews. The Applicant had been subjected to an acrimonious, malicious and hostile situation at school, she was moved from one school to another, and along the process she experienced harassment, embarrassment and emotional distress in the last year to date, such that while awaiting placement in another school which had the vacancy, she instead received the bad news of her appointment being withdrawn. This shows how injudicious the operations of the Respondent are, which have the dire consequences on the psychological, emotional and mental health of the employees.
49. This appalling gesture culminated in the Applicant being admitted at a wellness centre to help her deal with trauma. It is also sad to note that amidst all the malady created on the Applicant by the Respondent, the Applicant is dealing with this traumatic situation without any assistance or support form the Respondent.
50. It is time high time the department of education (Respondent) should learn that the deeds of ignorance cannot go unpunished. Something erroneous cannot be done by many healthy, sound and sane minds of learned people who are in direct contact of their everyday duties as responsible official who also have to ensure the effectiveness, efficiency and smooth running of the institutions.
51. , Having considered all the facts presented above, justice should prevail. The relief sought by the Applicant is straight forward. The Applicant wants to be placed in a vacant funded post wherever there is in the Mafikeng area.
RESPONDENT’S CLOSING ARGUMENTS
52. The Representative of the Respondent arguments are as follows; This matter was referred in terms Section 186(2)(a) of the LRA regarding an unfair conduct on the part of the the Respondent relating to a promotion of the Applicant.
53. The issues in dispute are whether the Respondent was aware that Boitshoko Secondary School did not have a post of a Deputy Principal Post PL3 when the Respondent proceeded with the interviews process which resulted to the promotion and appointment of the Applicant, and whether or not the Respondent does have the authority to withdraw a promotional appointment once it has been made.
54. The Applicant, Ms Mahomed testified that advertisement of posts is found at the school and in social media and that there were no problems when she applied. The problem started after her appointment. The Applicant stated that she went through the recruitment process and she was promoted and appointed. The Applicant stated that during a staff meeting it was stated that the post might not exist. The Applicant said she knew that the post did not exist at the time.
55. The Applicant further stated that the School Principal did engage the Sub District and that the Sub District Office never gave a go ahead for the recruitment process. The Applicant acknowledged that the first PPM catered for two Deputy Principal posts, but the revised PPM catered for only one Deputy Principal post.
56. The Applicant also made reference to a message from the School Principal sent to the Sub District Manager whereby the School Principal was enquiring about the availability of the post and that the Sub District Manager failed or did not to revert back to the School Principal as promised. The Applicant also produced her appointment letter as well as the withdrawal of her promotion or appointment letter.
57. During cross examination the Applicant stated that the cancellation of her appointment was unreasonable when referred to Para 8.9 of Circular 22 of 2018, which states that,” Furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2018, the Department will regard the post as cancelled”. The Applicant argued that the above paragraph refers only to promotional posts. She questioned why the Respondent issued an appointment letter if the paragraph did not apply to the disputed post.
58. The Applicant was asked whether she knew who was responsible for providing correct information to the Respondent. The Applicant said she was not sure. The Applicant confirmed that the School Principal was aware of the non-existence of the post in question.
59. The Applicant’s witness, Mr Zozi, the Deputy Principal at Boitshoko Secondary School testified that he was responsible for the recruitment process at the school as an Acting School Principal since the Principal of the school was barred from participating in recruitment processes as he was an applicant or candidate for a P5 School Principal post at another school. The witness further stated that he was a Branch Secretary of SADTU. He explained how the school was informed about posts to be filled. He stated that he was aware that the post did not exist but assumed that the advert for 2018 was based on the 2017 gazette because in 2017 the school qualified for two Deputy Principal posts.
60. The witness stated that the final 2018 PPM indicated that there was no post, but the Respondent did nothing to stop the recruitment process after being notified by the School Principal. He testified that the School Principal engaged Dr Mojafi, the Sub District Manager, who did nothing to stop the process. He testified that for the post to be cancelled, the Respondent must issue an addendum which the Respondent failed to do. He stated that failure by the Respondent to issue an addendum brought the impression that the post was a bonus to the school.
61. The witness referred to the minutes on pages 17 to 20 of Bundle B as SGB meeting minutes stating that indeed the Respondent failed to stop the process while fully aware that the post does not exist. He stated that he was not the custodian of the PPM and therefore could not be held responsible for discrepancies as a result thereof. He finally stated that he was the one who collected that appointment letter of the Applicant from Mr Itumeleng, the Circuit manager, the Sub District Office.
62. During cross examination he was asked why, as an acting Principal, did he not escalate the matter to the District since the Sub District Manager has failed to assist the school. He stated that it never came to his mind to do so. He was asked whether he had compared the 2017 PPM with the 2018 PPM, and he said he did but since the was not coming to party, the school decided that it was a bonus.
63. When referred to Para 8.9 of Circular 22 of 2018 and challenged on his testimony that for the post to be cancelled and that there must be an addendum to that effect, the witness failed to produce his source or authority supporting the issue relating to the addendum.
64. The witness was asked whether the Applicant was issued with an Assumption of duty as validation of her appointment. The witness stated that the Applicant was denied an opportunity to sign the Assumption of duty document.
65. The Applicant’s second witness, Dr Mojafi, the Sub District Manager, testified that she was on sick leave when the process was unfolding, however she had deployed her subordinates, the Circuit managers, to inform the school about the unavailability of the post. She conceded that she received an inquiry from the School Principal on the availability of the post but could not respond with certainty as she was driving at the time. She stated that she never reverted back to the School Principal due to her absence from work due to ill-health.
66. The second witness of the Applicant stated that her duty amongst others is to oversee the recruitment process at the end. Mr Langa was the Circuit Manager of the School. When Mr Langa left in June 2018 there was no Circuit Manager responsible for the School. Mr Itumeleng and the resource person were then tasked with the responsibility of ensuring that the School conducts the process properly. The second witness emphasized that both Messrs Langa and Itumeleng did inform the School about the non-existence of the Deputy Principal post at the time. The School Management Team and the SGB intentionally and deliberately colluded went ahead with the interviewing process with the aim of causing problems for the Respondent.
67. The second witness admitted that the post was erroneously advertised by the Respondent, hence a decision was taken to withdraw the Applicant’s appointment in line with clause 8.9 Circular number 22 of 2018.
68. The same SGB which alerted the Respondent about the non-existence of the post, despite having allowed the process to continue. When but when their plan backfired due to non-recommendation of their preferred candidate, they exposed the discrepancies. The second witness stated that Mr Zozi, who at the time was Acting School Principal at the time was aware of the status quo but he decided to ignore the reality and colluded with the SGB and continued with the interviewing process for a post which did not exist.
69. Under cross examination, the Applicant’s second witness Dr Mojafi admitted that Clause 8.9 of Circular number 22 of 2018 became applicable in this case as it applies even to promotional post. The witness disputed the issue of an addendum.
70. The second witness testified that an appointment to be considered valid, an Annexure, Appointment letter and an Assumption of duty must be completed, which was not the case in this matter due to the cancellation of the post by the Respondent.
71. The second witness of the Applicant admitted that the post was erroneously advertised as such the Respondent has a duty to remedy any situation which may have unintended consequences. She argued that it is incorrect that the Respondent deliberately advertised the post.
72. Following the appointment of the Applicant. Mr Zozi and the Applicant were unceremoniously chased out of the School premises by members of the SGB. Thereafter the same SGB escalated the matter. This in itself is indicative of a disagreement that existed between SGB, Mr Zozi and the Applicant. The blame cannot therefore be put at the Respondent’s doorstep only. The School Management Team and the SGB turned a blind eye on the non-existence of the post and attempted to only capitalise on the error of the Respondent driven by different agendas.
73. Both parties had their preferred candidate but unfortunately, as only one candidate could succeed, the SGB was dealt a blow when the Applicant was recommended for appointment and therefore expelled Mr Zozi and the Applicant and then exposed the discrepancy. It is interesting what would have happened had the SGB’s preferred candidate succeeded, would the SGB have raised the alarm as it did in this case? The answer is a definite no.
74. It is the testimony of the Applicant’s second witness that has she been not on sick leave the appointment letter of the Applicant would not have been issued in the first place. Upon her return to office she found that the appointment letter had been issued by Mr Itumeleng, who had been acting for her at the time.
75. It is also the argument of the Respondent that such an appointment would have been also discovered during capturing of the post on Persal, where it was going to be rejected by the Persal system due to unavailability of vacant Deputy Principal post at Boitshoko Secondary School.
76. The conduct of Mr Zozi as supported by his testimony ran contrary to what was expected from a reasonable person in that position. Mr Zozi intentional misled the Respondent with an intention to dent the image ot the Respondent in pursuit of his own agenda. Mr Zozi as he was the Acting School Principal at the time he was expected to act in a manner that promotes and protects the interest of the Respondent, which he failed to do so and as such the conduct of Mr Zozi and the role that he played to create confusion warrants disciplinary action.
77. The Applicant admitted not having signed the assumption of duty letter which should have completed and validated her appointment In the absence of an assumption of duty letter it cannot be said that the conduct of the Respondent constitutes an unfair labour practice. The Respondent had a prerogative to act in this case and to avoid setting a bad precedent.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
78. Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. In NEHAWU v University of Cape Town 2003 BCLR 154 (CC) the Constitutional Court, per Ngcobo J, held that “our Constitution is unique in constitutionalising the right to fair labour practice. But the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept…The concept of fair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the LAC and the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity-based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of unfair labour practice in the LRA.”
79. The declared purpose of the LRA “is to advance economic development, social justice, labour peace and the democratization of the workplace.” This is to be achieved by fulfilling its primary objects which includes giving effect to section 23 of the Constitution.
80. Section 185(b) of the LRA provides that every employee has the right not to be subject to an unfair labour practice. Section 186(2)(a) of the LRA defines unfair labour practice to mean any unfair act or omission that arises between an employer and an employee involving unfair conduct relating to promotion of an employee.
81. Once it is established that a promotion is involved, the fairness of the employer’s conduct may be investigated. In general, the scrutiny of an employer’s conduct departs from the principle that “unfairness” is an objective concept. Unfairness implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
Does the withdrawal of the Applicant’s appointment by the Respondent constitutes an unfair labour practice?
82. In this matter, it is clear that there are very little (if any) material factual differences between the parties’ respective versions in respect of what occurred. It is trite law that the Applicant party bears the onus to prove on a balance of probabilities that the Respondent’s conduct constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”) by appointing the Applicant to a position of a Deputy Principal and subsequently withdrawing such an appointment.
83. It is common cause that the position of a Deputy Principal was advertised in June 2018. It is further common cause that the Applicant applied. The Applicant was shortlisted, interviewed on 23 August 2018 and subsequently promoted and appointed to this position on 11 September 2018. It is also not disputed that the Applicant’s appointment was subsequently withdrew by the Respondent on 12 December 2018.
84. It is further common cause that existing position(s) are informed by an approved PPM for each year which comes from the Respondent. It is also not disputed that the 2018 revised PPM did not make any provision or catering for the position in question.
85. It is further not disputed that despite the position in question not being catered for or not existing in terms of the revised 2018 PPM, the Respondent did advertise the position anyway.
86. It also further common cause that for an appointment to be said that it has been formally and finally made or approved the successful candidate must sign the annexure as well as an assumption of duty documentation or letter which must be also signed by all relevant departmental officials starting with the School Principal, Circuit Manager, Sub-District Manager and finally by the Acting District Director, which was not the case in this matter.
87. It also not disputed that at the time of filling this position the School Principal did not oversee the entire process as he was also a candidate for a P5 Principal position in another School and that the School did not have a Circuit Manager as Mr Lanag’s contract ended in June 2018 and that Mr Itumeleng was acting as the Sub-District Manager a position held Dr Mojafi who was on leave at the time.
88. It is also common cause that the School Governing Body participated during the interviews. The very same SGB members later advised the Respondent’s Sub-District Office that the position in question does not exist in the School’s PPM. This is the reason or ground on which the Respondent relied on when withdrawing the Applicant’s appointment. Letter.
89. It further common cause that the Applicant’s second witness, Dr Mojafi. Messrs Itumeleng and Ngwenya (Who deals with PPMs) attended a meeting at School on 18 September 2018. From the reading of the minutes it evident that all three officials informed the meeting that the School did not have a post of a second Deputy Principal. The meeting was also attended by the SGB members.
90. It is also common cause that the Departmental Circular Number 22 of 2018, clause 8.9 under general information provides that” Furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2018, the Department will regard the post as cancelled”.
91. It also common cause that the PPMs do not make provisions for “Bonus” positions to Schools.
92. By own admission the Applicant’s first witness admitted having been aware that in terms of School’s revised 2018 PPM the position of a Second Deputy Principal did not exist at time of running the interviews process which led to the appointment of the Applicant. It is also the version of the Applicant that as part of the School Management Team she was not certain whether the position existed, but in briefing which the Applicant attended shortly before the interviews the School Principal highlighted the uncertainty about the existence of the position, hence the School Principal tried to seek clarity from the Respondent’s Sub-District Manager, Dr Mojafi unsuccessfully so.
93. It further not disputed that during the SGB meeting held on 18 September 2018 the School Principal Mr Mmusi indicated or confirmed that no go-ahead had been given to continue with the interviews.
94. The testimony of the Applicant’s second witness Dr Mojafi in my view shed the needed light into the dispute’s complexities and details in respect of what really transpired. The version of the Applicant’s witness further tainted the case of the Applicant making the version of the Applicant and the Applicant’s first witness highly improbable.
95. The second witness of the Applicant admitted that the Respondent had the right or prerogative to cancel or withdrew the Applicant’s appointment after it had been discovered that the position to which the Applicant had been pointed in actually did not exist and that the Respondent had erroneously advertised the position and as such clause 8.9 of Circular Number 22 of 2018 became applicable as it was incorporated into the guideline to cater for such eventualities
96. Having had regard to the evidence presented before me as well as the respective parties’ arguments for and against the alleged unfair labour practice dispute. The only conclusion to be drawn is that the Respondent was aware that the School did not have a post of a second Deputy Principal on the one had. On the other had the SMT and the SGB members were also full aware, hence the SGB had raised the red flag following the Applicant’ appointment. Clearly the Respondent had erroneously advertised the post. The School Management Team and the School Governing Body to exploited or took advantage of the Respondent’s erroneous advertised post with the full knowledge that the School did not qualify for such a position. Clearly such conduct runs contrary to the duties and obligations entrusted to the SMT and the SGB in ensuring effective and efficient policy and processes adherence and proper implementation thereof.
97. In light of the above I am of the view that the Applicant has not been able to discharge the required onus on a balance of probabilities in this matter in establishing or showing that the conduct of the Respondent constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”).
98. In the premises I make the following award.
AWARD
99. The Respondent conduct was not unfair and it does not constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) as amended.
100. The case of the Applicant is hereby dismissed.
Kenneth Dlamini
Panelist: ELRC
Province: North West
Applicant: TSHEPO MOHAMED
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education, Sub-District Offices, Mafikeng, North West Province.
Award Date: 16 March 2020
Arbitrator: Kenneth Dlamini
Case No PSES 814-18/19 NW
In the matter between
TSHEPO MOHAMED Applicant
and
DEPARTMENT OF EDUCATION: NORTH WEST Respondent
ARBITRATOR: Kenneth Dlamini
HEARD: 26 February 2020
CLOSING ARGUMENTS: 05 March 2020
DATE OF AWARD: 16 March 2020
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA – whether a withdrawal of an appointment letter following an appointment into a non-existent post is unfair and constitutes an unfair labour practice for purposes of section 186(2)(a) of the LRA
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down for arbitration on 26 February 2020. The arbitration took place at the Department of Education, Sub-District Offices, Mafikeng, North West Province.
2. The Applicant, Ms Tshepo Mohamed was present and represented by Mr SD Molete, a full-time shop steward from the trade union SADTU. The Respondent, Department of Education, North West was represented by Mr Martin Keetile. the Respondent’s Employment Relations Practitioner.
3. The proceedings were digitally recorded.
THE ISSUE TO BE DECIDED
4. I have to decide whether or not the Respondent’s decision to withdraw the Applicant’s promotional appointment as a Deputy Principal PL 3 on the basis that the there was no existing post or vacancy at the time of the appointment constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”). The relief sought by the Applicant is to be re-instated as a Deputy Principal PL 3 in accordance with her appointment letter in a different School. In turn the Respondent wants the Applicant’s application to be dismissed.
THE BACKGROUND TO THE DISPUTE
5. The Applicant is currently employed by the Respondent as a Head of Department (PL 2). by the Respondent. At time of dispute the Applicant was at Boitshoko Secondary School as a Head of Department (PL 2). In June 2018 the Applicant applied for a Deputy Principal position which had been advertised in the vacancy list of Circular Number 22 of 2018. The Applicant was thereafter shortlisted, interviewed and became the successful candidate for the Deputy Principal position.
6. On 11 September 2018 the Applicant received her letter of appointment, which was subsequently withdrawn on 12 December 2018 by the Respondent reason being that the School, Boitshoko Secondary School did not have a vacant post for a Deputy Principal according to the revised 2018 staff establishment (PPM).
7. Being aggrieved by the withdrawal of the Applicant’s appointment, the trade union SADTU referred an unfair labour practice dispute to the Council. After conciliation failed. The matter was set down for arbitration.
SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s evidence
8. The Applicant party led evidence of three witnesses including the Applicant and further submitted a bundle of paginated documents, bundle B, pages 1-24. Bundle A, pages 1-11 was submitted by the Respondent. The Respondent’s Representative stated on record that there is no need for oral evidence to be led due to the nature of the issue in dispute. The Respondent will only be disposed of the dispute through arguments.
9. The Applicant, Ms Tshepo Mohamed testified that in June 2018 she applied for a Deputy Principal position PL 3 at Boitshoko Secondary School. She was shortlisted, interviewed on 23 August 2018. On 11 September 2018 she received an appointment letter from the Respondent. (Bundle B, page 10).
10. On 09 January 2019 she was called to the Area Office wherein she was given a letter dated 12 December 2018 withdrawing her appointment for the Deputy Principal position at the School (Bundle B, page 11).
11. The Applicant stated that following her appointment two members of SGB and two members from the tribal council instructed her and Mr Zozi Deputy Principal to vacate the School premises, which they did out fear. The SGB members also advised the Respondent’s Sub-District office that her appointment was flawed as it was not catered for by the School’s revised 2018 staff establishment (PPM), in other words she had been appointed into a position which does not exist. The Applicant said the SGB action was driven by the SGB’s dissatisfaction that the SGB preferred or favored candidate had not been .successful.
12. The Applicant continued to state that prior to the interviews the School Principal, Mr Mmusi had a briefing which she (Applicant) attended. The School Principal indicated that he (School Principal) was not certain whether the School had a position of a second Deputy Principal PL at the time. The School Principal assured the staff that he was going to seek clarity from Dr Mojafi, at the Sub-District Office and for which the School Principal did, but no response was received from Dr Mojafi.
13. The Applicant argued that the Respondent’s Sub-District Office was fully aware of the scheduled interviews for the Deputy Principal position. The Applicant did not dispute that she was aware of the School’s revised 2018 PPM. She said she was not sure whether the position she had been appointed in was existing at the time.
14. After being chased out of the School she went to the office of Dr Mojafi twice. Dr Mojafi was concerned
about her ordeal and advised her to remain at home. Dr Mojafi assured her that she will be informed of
any developments thereafter including a possibility of being moved to another School in the interim.
She later met with Messrs Itumeleng and Adipha who told her that the Respondent’s legal department was handling her matter.
15. Due to lack of communication thereafter she became emotionally drained and she had to be seen by a Psychiatrist
16. The Applicant admitted having no signed the assumption of duty documentation which would have approved her appointment officially. The Applicant argued that she was denied such an opportunity to sign such documentation by the Respondent.
17. The Applicant further argued that the Respondent’s conduct was contrary or not in line with clause 8.9 of the Respondent’ Circular Number 22 of 2018 which talks about cancellation and about a withdrawal of a position.
18. The first witness of the Applicant, Mr Fezile Zozi testified that he is a Deputy Principal PL 3 at Boitshoko Secondary School and also a branch secretary of the trade union SADTU. He stated that he is aware of the dispute involving the Applicant’s appointment as a Deputy Principal as well as the subsequent withdrawal of such an appointment by the Respondent.
19. The witness went on to say that according to the 2017 PPM the School qualified to have a Second Deputy Principal. The School later received a revised 2018 PPM which did not make provision for a Second Deputy Principal vacancy or position, but the Respondent went ahead and advertised the position. He said at no stage did the Respondent indicate that the position had been erroneously advertised and withdrew the advertised. He further stated that if it was the case, the Respondent should have withdrawn the advertised position by issuing an addendum.
20. He stated that prior to the interviewing process the School Principal, Mr Mmusi did seek clarity from the Respondent’s Sub-District Manager Dr Mojafi regarding this position unfortunately no feedback or guidance was received from the office of Dr Mojafi. The School Governing Body did not question anything at the time and as such interviews were conducted. The Applicant was successfully promoted and appointed to the position of Deputy Principal (Bundle B, page 10). He said he personally collected the Applicant’s appointment from one Mr Itumeleng’s office, who at the time was Acting Sub-District Manager.
21. The witness further stated that the School at the time viewed the advertised position as a “bonus’ because there was no subsequent addendum from the Respondent withdrawing or cancelling the advertised position.
22. The witness said around the time of the interviews, although he was not acting as the School Principal he was performing most of the School Principal duties because the School Principal, Mr Mmusi at the time was also a candidate for a P5 Principal position in a different School and as such Mr Mmusi could not be involved in interviews.
23. The witness admitted that he was aware that the School did not have a vacancy or position of a Second Deputy Principal. The witness further agreed that the Applicant never signed the mandatory assumption duty documentation finally approving the Applicant’s appointment to the said position. The witness however argued that the Respondent denied the Applicant an opportunity to sign the requisite final approval documentation and by doing the Respondent’s conduct constituted an unfair labour practice relating to promotion.
24. The third witness of the Applicant, Dr Charity Molatlhwane Mojafi testified that she is the Respondent’s Sub-District Manager. She went on to say that as a Sub-District Manager she oversees more than one-hundred schools. When it comes to the recruitment process her involvement is at the end of the value-chain. She said Circuit Managers are responsible for ensuring that details regarding policy implementation are dissemination and cascading to School Principals, School Governing Bodies and Staff. She stated that Circuit Manager are always on the ground making arounds at schools in their respective jurisdiction from time to time to ensure that the Respondent’s policies and practices are complied with.
25. She said the Respondent provides each school with a revised or approved PPM (Post Provisioning Model) which clarifies the number of positions available and learner distribution. Available positions are filled according to the PPM. Prior to any interview process the PPM is checked and if the PPM does not cater for a position it means such a position does not exist.
26. Regarding the withdrawal of the Applicant’s appointment. The witness said 2018 PPM for Boitshoko Secondary School did not make any provision or the position of a second Deputy Principal (Bundle A page 1). She said the School Principal Mr Mmusi, the School Gorvening Body (SGB) and the staff members were all aware that such a position did not exist. Mr Langa who was a Circuit Manager for Boitshoko Secondary School until June 2018 went to the school and provided details to the School Principal Mr Mmusi, who in turn advised the SGB and staff members that the position of a Second Deputy Principal did not exist.
27. Mr Zozi, being Deputy Principal at the School, he seats in the task team that deals with such processes, as such Mr Zozi was aware that the School did not have such a position. At some point the witness said she met with the Applicant and for which the Applicant confirmed to her that she (Applicant) was aware that the position did not exist at the School.
28. On the day of the shortlisting the School Principal, Mr Mmusi called her. At the time she was on leave and she was driving. She admitted having promised Mr Mmusi that she will come back to Mr Mmusi, which she did not. She stated that she never gave Mr Mmusi a go-ahead.
29. She said on 18 September 2018 she attended a follow-up meeting at Boitshoko Secondary School to address issues which had been raised by the SGB. The SGB members, the School Principal, Mr Mmusi and Mr Itumeleng were in also in attendance. She did mention during the meeting that Mr Mmusi had called her on the day of the shortlisting and that she (witness)could revert to Mmusi. During the meeting Mr Mmusi admitted that no one had given a go-ahead to continue with the interviews. The witness stated that she did emphasised that Boitshoko did not qualify for a second Deputy Principal position as it was not catered for by the revised 2018 PPM, minutes of the meeting (Bundle A, pages 18 and 19).
30. The witness said the School Management Team and the SGB deliberately and intentionally misled the Respondent by colluding with the aim of causing problems for the Respondent. She said at the time Mr Zozi was the Acting Principal. There was no Circuit Manager as Mr Langa’s contract had ended and Mr Itumeleng was acting in her position. She said the Respondent’s policy does not cater for bonus positions as claimed by Mr Zozi. She argued that there was no addendum needed to withdraw the position which she believes it was erroneously advertised, hence the Respondent exercised its prerogative to withdrawn the appointment of the Applicant in line with clause 8.9 of Circular Number 22 of 2018.
31. She went on to say that she also refused to sign the last two required documentation which would have approved the Applicant’s appointment namely the annexure and the assumption of duty. She argued that had she been in the office she would have got hold of the Applicant’s letter of appointment. She said upon her return to the office the Applicant’s appointment had been released my Mr Mmusi.
APPLICANT’S ARGUMENTS
32. On behalf of the Applicant, Mr SD Molete submitted the following closing arguments. He submitted that The matter between the Applicant and the Respondent is very emotional one in the sense that the Respondent does not show any kind of remorse towards the Applicant. It is as if making a mistake is something that is normal and needs to be accepted easily.
38. He went to submit that the following issues were placed in dispute namely;
• Whether the Respondent has the authority to withdraw a post after an appointment has been made.
• Whether it was fair for the Respondent to reverse or withdraw the Applicant’s appointment of being a Deputy Principal PL 3 at Boitshoko Secondary School.
• Whether the Respondent was not aware that the School did not have a vacancy before the Applicant could be appointed.
39. The Respondent could not be able to furnish the Applicant party with an existing authority which supports the conduct of the Respondent. Under normal circumstances, when an error is committed, it should be detected before the appointment is done in terms of the guidelines for the process of filling vacant posts. The Respondent was supposed to have withdrawn the post and not the appointment once the appointment has been made. The Respondent should have at the very least transferred the Applicant to an existing PL 3 vacant post in another School.
40. The Applicant was chased out of Boitshoko Secondary School by the SGB members. The Applicant was thereafter placed in another School which had a PL 2 post.
41. It is also procedurally unfair that the Applicant’s appointment was withdrawn after four months. The Applicant was appointed on 05 September 2018. The Respondent claims to have withdrew the Applicant’s appointment on 12 December 2018. Whereas the Applicant was only made aware of the withdrawal in Mid-January 2019.
42. The PPM was lying in the offices of the Respondent and it was clear that the post did not exist, the Respondent ignored its own means of communication and failed to communicate that the post was not existing at Boitshoko Secondary School. Why now should the Applicant be made a victim and suffer the consequences of a situation which was created by the Respondent.
43. He argued that it seems that it is a norm that educators will be made to suffer for the mistakes which they have not committed. The fact that the SGB that alerted the Respondent’s district office of this kind of malady is a clear indication that the Respondent continued with the process knowingly that the process was flawed.
44. The Applicant’s second witness, Mr Zozi admitted that the School was aware that it did not have the post, hence the School Principal sought guidance from the Respondent’s Sub-District Manager who admitted having not reverted to the School Principle because she was not keen to communicate with the School Principal given that the School Principal was also a candidate for a P5 School Principal post.
45. It is the SGB that reacted upon the appointment of the Applicant which shows that the SGB itself had a vested interest in the process. Applicant received the appointment letter on the 11 September 2018. On 13 September 2018 the SGB members chased out or removed the Applicant from the School’s premises. The Respondent remained silent up until the SGB members alerted the Respondent about the appointment of the Applicant. That in itself is indicative that the Respondent did not have a problem though the post did not exist.
46. School principals are aware of protocols in terms of communication channels in the department, so the principal could have directly communicated with the immediate senior, who is the Circuit Manager. It is therefore disputed that the Sub-District Manager had assigned a Circuit Manager for the School around the interviewing process following the departure of one Mr Langa, otherwise the School Principal would have not communicated with the Sub-District Manager at the time seeking guidance.
47. It is also disappointing to learn that the revised PPM was issued on 20 March 2018. The gazette (Circular 22 of 2018) was issued on 14 June 2018 and that the interviews was conducted on the 23 August 2018 the day after the clarification in regard to continuing with the process or not was sought for from the Sub-District Manager. The verification process on the recommendations by SGB after the interview was done and was presided over by the Sub-District Manage (Dr Mojafi). The appointment letter was issued on 11 September 2018 and the Applicant was made to sign the confirmation letter the same day. All the processes were done in the face of a non-existent post wherein an appointment made was subsequently withdrawn four months later which in itself put the conduct of the Respondent under serious doubt.
48. The Applicant had to undergo a tedious process towards the interviews. The Applicant had been subjected to an acrimonious, malicious and hostile situation at school, she was moved from one school to another, and along the process she experienced harassment, embarrassment and emotional distress in the last year to date, such that while awaiting placement in another school which had the vacancy, she instead received the bad news of her appointment being withdrawn. This shows how injudicious the operations of the Respondent are, which have the dire consequences on the psychological, emotional and mental health of the employees.
49. This appalling gesture culminated in the Applicant being admitted at a wellness centre to help her deal with trauma. It is also sad to note that amidst all the malady created on the Applicant by the Respondent, the Applicant is dealing with this traumatic situation without any assistance or support form the Respondent.
50. It is time high time the department of education (Respondent) should learn that the deeds of ignorance cannot go unpunished. Something erroneous cannot be done by many healthy, sound and sane minds of learned people who are in direct contact of their everyday duties as responsible official who also have to ensure the effectiveness, efficiency and smooth running of the institutions.
51. , Having considered all the facts presented above, justice should prevail. The relief sought by the Applicant is straight forward. The Applicant wants to be placed in a vacant funded post wherever there is in the Mafikeng area.
RESPONDENT’S CLOSING ARGUMENTS
52. The Representative of the Respondent arguments are as follows; This matter was referred in terms Section 186(2)(a) of the LRA regarding an unfair conduct on the part of the the Respondent relating to a promotion of the Applicant.
53. The issues in dispute are whether the Respondent was aware that Boitshoko Secondary School did not have a post of a Deputy Principal Post PL3 when the Respondent proceeded with the interviews process which resulted to the promotion and appointment of the Applicant, and whether or not the Respondent does have the authority to withdraw a promotional appointment once it has been made.
54. The Applicant, Ms Mahomed testified that advertisement of posts is found at the school and in social media and that there were no problems when she applied. The problem started after her appointment. The Applicant stated that she went through the recruitment process and she was promoted and appointed. The Applicant stated that during a staff meeting it was stated that the post might not exist. The Applicant said she knew that the post did not exist at the time.
55. The Applicant further stated that the School Principal did engage the Sub District and that the Sub District Office never gave a go ahead for the recruitment process. The Applicant acknowledged that the first PPM catered for two Deputy Principal posts, but the revised PPM catered for only one Deputy Principal post.
56. The Applicant also made reference to a message from the School Principal sent to the Sub District Manager whereby the School Principal was enquiring about the availability of the post and that the Sub District Manager failed or did not to revert back to the School Principal as promised. The Applicant also produced her appointment letter as well as the withdrawal of her promotion or appointment letter.
57. During cross examination the Applicant stated that the cancellation of her appointment was unreasonable when referred to Para 8.9 of Circular 22 of 2018, which states that,” Furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2018, the Department will regard the post as cancelled”. The Applicant argued that the above paragraph refers only to promotional posts. She questioned why the Respondent issued an appointment letter if the paragraph did not apply to the disputed post.
58. The Applicant was asked whether she knew who was responsible for providing correct information to the Respondent. The Applicant said she was not sure. The Applicant confirmed that the School Principal was aware of the non-existence of the post in question.
59. The Applicant’s witness, Mr Zozi, the Deputy Principal at Boitshoko Secondary School testified that he was responsible for the recruitment process at the school as an Acting School Principal since the Principal of the school was barred from participating in recruitment processes as he was an applicant or candidate for a P5 School Principal post at another school. The witness further stated that he was a Branch Secretary of SADTU. He explained how the school was informed about posts to be filled. He stated that he was aware that the post did not exist but assumed that the advert for 2018 was based on the 2017 gazette because in 2017 the school qualified for two Deputy Principal posts.
60. The witness stated that the final 2018 PPM indicated that there was no post, but the Respondent did nothing to stop the recruitment process after being notified by the School Principal. He testified that the School Principal engaged Dr Mojafi, the Sub District Manager, who did nothing to stop the process. He testified that for the post to be cancelled, the Respondent must issue an addendum which the Respondent failed to do. He stated that failure by the Respondent to issue an addendum brought the impression that the post was a bonus to the school.
61. The witness referred to the minutes on pages 17 to 20 of Bundle B as SGB meeting minutes stating that indeed the Respondent failed to stop the process while fully aware that the post does not exist. He stated that he was not the custodian of the PPM and therefore could not be held responsible for discrepancies as a result thereof. He finally stated that he was the one who collected that appointment letter of the Applicant from Mr Itumeleng, the Circuit manager, the Sub District Office.
62. During cross examination he was asked why, as an acting Principal, did he not escalate the matter to the District since the Sub District Manager has failed to assist the school. He stated that it never came to his mind to do so. He was asked whether he had compared the 2017 PPM with the 2018 PPM, and he said he did but since the was not coming to party, the school decided that it was a bonus.
63. When referred to Para 8.9 of Circular 22 of 2018 and challenged on his testimony that for the post to be cancelled and that there must be an addendum to that effect, the witness failed to produce his source or authority supporting the issue relating to the addendum.
64. The witness was asked whether the Applicant was issued with an Assumption of duty as validation of her appointment. The witness stated that the Applicant was denied an opportunity to sign the Assumption of duty document.
65. The Applicant’s second witness, Dr Mojafi, the Sub District Manager, testified that she was on sick leave when the process was unfolding, however she had deployed her subordinates, the Circuit managers, to inform the school about the unavailability of the post. She conceded that she received an inquiry from the School Principal on the availability of the post but could not respond with certainty as she was driving at the time. She stated that she never reverted back to the School Principal due to her absence from work due to ill-health.
66. The second witness of the Applicant stated that her duty amongst others is to oversee the recruitment process at the end. Mr Langa was the Circuit Manager of the School. When Mr Langa left in June 2018 there was no Circuit Manager responsible for the School. Mr Itumeleng and the resource person were then tasked with the responsibility of ensuring that the School conducts the process properly. The second witness emphasized that both Messrs Langa and Itumeleng did inform the School about the non-existence of the Deputy Principal post at the time. The School Management Team and the SGB intentionally and deliberately colluded went ahead with the interviewing process with the aim of causing problems for the Respondent.
67. The second witness admitted that the post was erroneously advertised by the Respondent, hence a decision was taken to withdraw the Applicant’s appointment in line with clause 8.9 Circular number 22 of 2018.
68. The same SGB which alerted the Respondent about the non-existence of the post, despite having allowed the process to continue. When but when their plan backfired due to non-recommendation of their preferred candidate, they exposed the discrepancies. The second witness stated that Mr Zozi, who at the time was Acting School Principal at the time was aware of the status quo but he decided to ignore the reality and colluded with the SGB and continued with the interviewing process for a post which did not exist.
69. Under cross examination, the Applicant’s second witness Dr Mojafi admitted that Clause 8.9 of Circular number 22 of 2018 became applicable in this case as it applies even to promotional post. The witness disputed the issue of an addendum.
70. The second witness testified that an appointment to be considered valid, an Annexure, Appointment letter and an Assumption of duty must be completed, which was not the case in this matter due to the cancellation of the post by the Respondent.
71. The second witness of the Applicant admitted that the post was erroneously advertised as such the Respondent has a duty to remedy any situation which may have unintended consequences. She argued that it is incorrect that the Respondent deliberately advertised the post.
72. Following the appointment of the Applicant. Mr Zozi and the Applicant were unceremoniously chased out of the School premises by members of the SGB. Thereafter the same SGB escalated the matter. This in itself is indicative of a disagreement that existed between SGB, Mr Zozi and the Applicant. The blame cannot therefore be put at the Respondent’s doorstep only. The School Management Team and the SGB turned a blind eye on the non-existence of the post and attempted to only capitalise on the error of the Respondent driven by different agendas.
73. Both parties had their preferred candidate but unfortunately, as only one candidate could succeed, the SGB was dealt a blow when the Applicant was recommended for appointment and therefore expelled Mr Zozi and the Applicant and then exposed the discrepancy. It is interesting what would have happened had the SGB’s preferred candidate succeeded, would the SGB have raised the alarm as it did in this case? The answer is a definite no.
74. It is the testimony of the Applicant’s second witness that has she been not on sick leave the appointment letter of the Applicant would not have been issued in the first place. Upon her return to office she found that the appointment letter had been issued by Mr Itumeleng, who had been acting for her at the time.
75. It is also the argument of the Respondent that such an appointment would have been also discovered during capturing of the post on Persal, where it was going to be rejected by the Persal system due to unavailability of vacant Deputy Principal post at Boitshoko Secondary School.
76. The conduct of Mr Zozi as supported by his testimony ran contrary to what was expected from a reasonable person in that position. Mr Zozi intentional misled the Respondent with an intention to dent the image ot the Respondent in pursuit of his own agenda. Mr Zozi as he was the Acting School Principal at the time he was expected to act in a manner that promotes and protects the interest of the Respondent, which he failed to do so and as such the conduct of Mr Zozi and the role that he played to create confusion warrants disciplinary action.
77. The Applicant admitted not having signed the assumption of duty letter which should have completed and validated her appointment In the absence of an assumption of duty letter it cannot be said that the conduct of the Respondent constitutes an unfair labour practice. The Respondent had a prerogative to act in this case and to avoid setting a bad precedent.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
78. Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. In NEHAWU v University of Cape Town 2003 BCLR 154 (CC) the Constitutional Court, per Ngcobo J, held that “our Constitution is unique in constitutionalising the right to fair labour practice. But the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept…The concept of fair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the LAC and the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity-based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of unfair labour practice in the LRA.”
79. The declared purpose of the LRA “is to advance economic development, social justice, labour peace and the democratization of the workplace.” This is to be achieved by fulfilling its primary objects which includes giving effect to section 23 of the Constitution.
80. Section 185(b) of the LRA provides that every employee has the right not to be subject to an unfair labour practice. Section 186(2)(a) of the LRA defines unfair labour practice to mean any unfair act or omission that arises between an employer and an employee involving unfair conduct relating to promotion of an employee.
81. Once it is established that a promotion is involved, the fairness of the employer’s conduct may be investigated. In general, the scrutiny of an employer’s conduct departs from the principle that “unfairness” is an objective concept. Unfairness implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
Does the withdrawal of the Applicant’s appointment by the Respondent constitutes an unfair labour practice?
82. In this matter, it is clear that there are very little (if any) material factual differences between the parties’ respective versions in respect of what occurred. It is trite law that the Applicant party bears the onus to prove on a balance of probabilities that the Respondent’s conduct constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”) by appointing the Applicant to a position of a Deputy Principal and subsequently withdrawing such an appointment.
83. It is common cause that the position of a Deputy Principal was advertised in June 2018. It is further common cause that the Applicant applied. The Applicant was shortlisted, interviewed on 23 August 2018 and subsequently promoted and appointed to this position on 11 September 2018. It is also not disputed that the Applicant’s appointment was subsequently withdrew by the Respondent on 12 December 2018.
84. It is further common cause that existing position(s) are informed by an approved PPM for each year which comes from the Respondent. It is also not disputed that the 2018 revised PPM did not make any provision or catering for the position in question.
85. It is further not disputed that despite the position in question not being catered for or not existing in terms of the revised 2018 PPM, the Respondent did advertise the position anyway.
86. It also further common cause that for an appointment to be said that it has been formally and finally made or approved the successful candidate must sign the annexure as well as an assumption of duty documentation or letter which must be also signed by all relevant departmental officials starting with the School Principal, Circuit Manager, Sub-District Manager and finally by the Acting District Director, which was not the case in this matter.
87. It also not disputed that at the time of filling this position the School Principal did not oversee the entire process as he was also a candidate for a P5 Principal position in another School and that the School did not have a Circuit Manager as Mr Lanag’s contract ended in June 2018 and that Mr Itumeleng was acting as the Sub-District Manager a position held Dr Mojafi who was on leave at the time.
88. It is also common cause that the School Governing Body participated during the interviews. The very same SGB members later advised the Respondent’s Sub-District Office that the position in question does not exist in the School’s PPM. This is the reason or ground on which the Respondent relied on when withdrawing the Applicant’s appointment. Letter.
89. It further common cause that the Applicant’s second witness, Dr Mojafi. Messrs Itumeleng and Ngwenya (Who deals with PPMs) attended a meeting at School on 18 September 2018. From the reading of the minutes it evident that all three officials informed the meeting that the School did not have a post of a second Deputy Principal. The meeting was also attended by the SGB members.
90. It is also common cause that the Departmental Circular Number 22 of 2018, clause 8.9 under general information provides that” Furthermore, if a post has been advertised and the learning institution does not qualify for such post according to the post establishment for 2018, the Department will regard the post as cancelled”.
91. It also common cause that the PPMs do not make provisions for “Bonus” positions to Schools.
92. By own admission the Applicant’s first witness admitted having been aware that in terms of School’s revised 2018 PPM the position of a Second Deputy Principal did not exist at time of running the interviews process which led to the appointment of the Applicant. It is also the version of the Applicant that as part of the School Management Team she was not certain whether the position existed, but in briefing which the Applicant attended shortly before the interviews the School Principal highlighted the uncertainty about the existence of the position, hence the School Principal tried to seek clarity from the Respondent’s Sub-District Manager, Dr Mojafi unsuccessfully so.
93. It further not disputed that during the SGB meeting held on 18 September 2018 the School Principal Mr Mmusi indicated or confirmed that no go-ahead had been given to continue with the interviews.
94. The testimony of the Applicant’s second witness Dr Mojafi in my view shed the needed light into the dispute’s complexities and details in respect of what really transpired. The version of the Applicant’s witness further tainted the case of the Applicant making the version of the Applicant and the Applicant’s first witness highly improbable.
95. The second witness of the Applicant admitted that the Respondent had the right or prerogative to cancel or withdrew the Applicant’s appointment after it had been discovered that the position to which the Applicant had been pointed in actually did not exist and that the Respondent had erroneously advertised the position and as such clause 8.9 of Circular Number 22 of 2018 became applicable as it was incorporated into the guideline to cater for such eventualities
96. Having had regard to the evidence presented before me as well as the respective parties’ arguments for and against the alleged unfair labour practice dispute. The only conclusion to be drawn is that the Respondent was aware that the School did not have a post of a second Deputy Principal on the one had. On the other had the SMT and the SGB members were also full aware, hence the SGB had raised the red flag following the Applicant’ appointment. Clearly the Respondent had erroneously advertised the post. The School Management Team and the School Governing Body to exploited or took advantage of the Respondent’s erroneous advertised post with the full knowledge that the School did not qualify for such a position. Clearly such conduct runs contrary to the duties and obligations entrusted to the SMT and the SGB in ensuring effective and efficient policy and processes adherence and proper implementation thereof.
97. In light of the above I am of the view that the Applicant has not been able to discharge the required onus on a balance of probabilities in this matter in establishing or showing that the conduct of the Respondent constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”).
98. In the premises I make the following award.
AWARD
99. The Respondent conduct was not unfair and it does not constitutes an unfair labour practice within the meaning of section 186(2)(a) of the Labour Relations Act 66 of 1995 (the LRA) as amended.
100. The case of the Applicant is hereby dismissed.
Kenneth Dlamini
Panelist: ELRC