PSES741-19/20GP
PSES741-19/20GP
Award Date:
21 October 2020
Case Number: PSES741-19/20GP
Province: Gauteng
Applicant: N F MOLOTO
Respondent: 1st Respondent HOD, Department of Education, G and 2nd Respondent M MAGATA
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtually
Award Date: 21 October 2020
Arbitrator: D P Van Tonder
Case No PSES741-19/20GP
In the matter between
N F MOLOTO Applicant
and
HOD, Department of Education,GP First Respondent
M MAGATA Second Respondent
ARBITRATOR: D P Van Tonder
HEARD: 29 July 2020; 3 and 12 August 2020
7 and 8 September 2020
5 October 2020
FINALISED: 12 October 2020
DELIVERED: 21 October 2020
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Unfair Labour Practice – Promotion
ARBITRATION AWARD
Table of Contents
I THE PARTIES 3
II PROCEDURAL HISTORY 3
III THE ISSUES TO BE DETERMINED 3
IV BACKGROUND 4
V SUMMARY OF THE EVIDENCE 5
VI THE ARGUMENTS 17
VII DISCUSSION AND FINDINGS 17
AWARD 39
I THE PARTIES
Applicant
[1] The applicant is Mr Nare Frank Moloto who appeared in person and represented himself.
Respondents
[2] First respondent is the Provincial Head of Department of the Gauteng Department of Education and was represented by an employee Mr M Hlapolosa. Second respondent is Ms M E Magata who appeared in person and represented herself.
II PROCEDURAL HISTORY
[3] After an unsuccessful conciliation before another panellist, the matter was referred to arbitration and I was appointed as arbitrator. Due to COVID19 evidence was heard during virtual Zoom meetings on 29 July, 3 and 12 August, 7 and 8 September and 5 October 2020. The proceedings were digitally recorded. The arbitration was finalised when I received the final written closing arguments on 12 October 2020.
III THE ISSUES TO BE DETERMINED
[4] I am required to determine whether an unfair labour practice was committed by first respondent, and if so, the appropriate relief.
IV BACKGROUND
[5] Applicant is a post level 1 educator at Kensington Secondary School. He has been employed as an educator since 1993 and has been employed by first respondent since 2003.
[6] Applicant has referred a promotion dispute involving post number JE39ED1007 at Kensington Secondary School in Johannesburg, being the post of deputy principal (post level 3), advertised by first respondent in vacancy list 3 of 2019. The advertised criteria for the post was leadership, administration and management skills related to the specific school type. The school type is an ordinary secondary school. Approximately 74 candidates applied for the post. Fourteen candidates were shortlisted. Eleven of the shortlisted candidates, including applicant and second respondent were interviewed.
[7] After the interviews and ratification meeting the school governing body sent a recommendation list to the employer containing the names of three candidates. Applicant was the first candidate on the list, and second respondent was the second candidate on the list. On 16 October 2019 a district director who has delegated authority from the first respondent to appoint deputy principals, appointed second respondent to the post with effect from 1 November 2019.
[8] Applicant claims that he was the best candidate and that the employer acted unfairly by having promoted second respondent and not him to the post. He asks to be promoted to the post. Respondents are disputing that applicant was the best of all the candidates and ask for applicant’s claim to be dismissed.
V BRIEF SUMMARY OF THE EVIDENCE
Documentary evidence
[9] Various documents were submitted as part of the evidence and are contained in pdf bundles marked A to L. I do not intend to summarise the documentary evidence, and will refer to documents if and where necessary during my discussion of the evidence and arguments. I did however peruse all the documentary evidence that was referred to during the evidence.
Evidence on behalf of applicant
[10] Frank Nare Moloto, the applicant testified that he was the best of all the candidates and asked for an order appointing him to the post. In motivating his request, he testified that he scored the highest during interviews namely 135, whereas second respondent scored 110. The SGB recommended him as their preferred candidate.
[11] He further testified that in relation to qualifications, he was also the best candidate. He holds a secondary teachers diploma whereas second respondent holds a senior primary teachers diploma. His ACE qualification is in leadership and management whereas that of second respondent is in mathematics. He also holds a post graduate diploma in labour law.
[12] As regards managerial experience, he does not dispute that second respondent has been a post level 2 HOD for 7 years, whereas he is a post level 1 educator. He however believes that he has better managerial and leadership experience than second respondent by virtue of his experience as Head of House at Kensington Secondary School. He is also a member of the SGB.
[13] He is of the view that the reason why the employer appointed second respondent and not him, is because of employment equity. The district director was of the view that the school management team would be predominantly male if he was appointed. This he submitted was impermissible because according to the employer’s employment equity profiles and targets, men are underrepresented on post level 3. Furthermore, there are many schools in the area where the entire SMT consists of males.
[14] In selecting him as the best candidate and their preferred candidate, the SGB did not act unfairly. All the internal applicants (including post level 1 educators) were shortlisted, but external post level 1 educators were not shortlisted. The SGB never changed any criteria to accommodate him.
[15] Jabu Mbuli testified that he had been a parent member of the SGB since 2018. He has taken part in two interviews and training sessions for the appointment of educators at the school. The criteria that they have used for this post, namely to shortlist all internal candidates, were the same criteria that they had used in the past. The reason why the SGB shortlists all internal candidates is to ensure that the internal candidates get exposure to questions during interviews so that if they have another chance in future to be invited to interviews, then they would have had exposure already. The second reason why they shortlisted all internal candidates, was for motivational purposes. Educators are unhappy when one educator at the school is invited for interviews, but other educators at the school are not invited for interviews.
[16] They used scores to arrive at their recommendation because this eliminates discussions after scoring. The IC consisted of 3 educator members and 5 parent members. Only the 5 parent members and one teacher member scored.
[17] One member suggested that only the parent members must score. The principal remained neutral and did not score and the one teacher member took notes and also did not score. Asked as to whether they compared their answers to the list of model answers that were drawn up, he testified that the list just contained possible answers and that they could not all score the same based on what they heard because they are all different individuals.
[18] When the district director asked to meet with the SGB after they had sent in their recommendation, members of the SGB wanted to know why she wanted to meet with them as this had never happened before. During the meeting the director wanted the SGB to motivate their recommendation. She said that there were flaws in the process and also mentioned that the SMT at the school was predominantly male whereas the preferred candidate of the SGB was also male. The district director said that she would revert to them, but she never did. She went ahead and appointed second respondent without further consultation with the SGB. The SGB rejected the appointment of second respondent and complained to the department.
[19] Belinda Rollison testified that she is an educator member of the SGB at Kensington Secondary. She took minutes during the interviews and did not score. In this process the SGB followed the same practice that they had followed in the past namely to automatically shortlist all internal candidates, including post level 1 educators. This was to motive internal candidates and give them exposure. This practice was never questioned before.
[20] The list of model answers that the SGB had during the interviews, was just a guideline and not a memorandum. During the meeting that the district director had with the SGB, she mentioned that there were flaws in the process but that she can excuse them. The director wanted them to motivate why they had preferred applicant. The director was unhappy about the fact that the preferred candidate of the SGB was a male.
[21] The director never came back to the SGB after the meeting and before she appointed second respondent. When requested to do so, she submitted all the minutes that she took during the interviews as well as the minutes that she took during the meeting with the district director.
[22] Thandazo Mdunge testified that she is a parent member and chairperson of the SGB. She has taken part in three training sessions and three sets of interviews for the appointment of educators at the school. This was her third set of interviews.
[23] In the past the SGB had automatically shortlisted all internal candidates. This was never questioned. In this process they followed the same practice again.
[24] According to her understanding, a head of house deals with administration, learners, sports, discipline and curriculum. When asked what curriculum the head of house deals with, she responded that she does not know. Asked by applicant whether a head of house is a leader or manager, she first replied that she does not understand the question. Applicant then followed this up with another leading question and asked whether if a head of house is a leader, to which she responded, yes. During cross-examination she testified that a head of house does 80% of what an HOD does and that a school can function without an HOD but not without a head of house.
[25] The list of model answers that they had was complied with the assistance of the principal and some of the educator members on the panel. If a candidate said something that was not contained in the model answer, then it was not necessarily wrong.
[26] She testified that during the meeting with the district director, the director wanted the SGB to motivate their recommendation. She did motivate, because she had so many reasons why she wanted applicant to be appointed to the post. She explained that they were looking for a strong male father figure who is good with discipline. The director also wanted to know why they had preferred a male over a female. It was not a requirement that they had to appoint a female as gender equity was not one of the criteria. The director also mentioned that there were flaws in the process but that she was prepared to overlook it.
[27] After the meeting, the director never came back to the SGB again. She appointed second respondent without further consultation. She as chairperson, and other members of the SGB, then wrote a letter to the employer to complain about the non-appointment of applicant, because the appointment of second respondent went against their recommendation.
Evidence on behalf of first respondent (employer)
[28] Tlou Moloto, testified that he is the school principal of Kensington Secondary. He has been employed at this school since 2012 and he became the principal in June 2018.
[29] The system of heads of houses was a system that was introduced in 2015 by the previous school principal who came from a sports school where they had used the head of house system. The SGB paid the heads of houses for being head of house. When he became principal, the head of house system was still in place, but the system did not work in Kensington Secondary. The only head of house who was actively involved in the system was applicant in his capacity as sports organiser. Because the system did not work, it was discontinued.
[30] According to him, a head of house is not a manager. The management of the school is taken care of by the SMT, consisting of the principal, deputy principal and post level 2 HOD educators. There is not another hierarchy of management in the school. The houses are not departmental structures. It is not a recognised system.
[31] He does not agree that heads of houses were responsible for discipline of learners merely by virtue of being a head of house. There is a disciplinary committee, and any educator, including an educator who happens to be a head of house, could be a member of that committee. Whatever was done in a head of house, was extra-curricular in nature.
[32] He decided not to score during the interviews for this post, because of what happened in a previous process. He therefore rather decided to remain neutral. The list of model answers that the SGB had, was a memorandum. Panellists were meant to score according to that memorandum. If panel members only saw the document as guidelines, and scored without reference to the memorandum, then the scoring was subjective and not objective. He was asked during his evidence to look at the scores that panellists allocated to certain candidates during the interviews and more particularly to the fact that applicant was scored full marks by certain panel members for certain questions. His response was that for question number 1 it was possible to score 5 out of 5, but that due to the nature of the questions, it was simply not possible for a candidate to score 5 out of 5 for questions 2 to 5, and yet applicant was scored 5 out of 5 by some of the panel members for questions 1, 2, 3, 4, and 5. He is of the view that these cannot be objective scores.
[33] Despite being a member of the governing body, he had no knowledge of the letter that certain members of the SGB wrote to the employer after second respondent was appointed, in which they objected to the fact that second respondent and not applicant was appointed. Nobody ever consulted him about the intention to write such a letter and it was written without his knowledge.
[34] Shirley Molobi testified that she is employed by first respondent as the district director for the Johannesburg East District. She became a district director in 2011 in another district and was transferred to the Johannesburg East district on 1 February 2019. She has delegated authority from the first respondent to appoint all deputy principals in her district. In this regard she referred to the delegations, contained in the bundles of documents. She did not know applicant, second respondent or the third candidate on the recommendation list of the SGB when she appointed second respondent in this post.
[35] After she received the recommendation from the SGB for this post, she perused it together with all the other documentation. She was not satisfied with the motivations that the SGB gave for their recommendation and she accordingly decided to meet the SGB to give them an opportunity to motivate.
[36] At the meeting they only motivated why they wanted applicant to be appointed, and did not say anything about the other candidates. As to why the SGB wanted her to appoint applicant, some of the reasons that they gave to her, included the fact that they wanted a father figure and a disciplinarian and that applicant arrives early at school. In essence, the SGB members did not address the concerns that she had about their lack of proper motivation. During the meeting with the SGB, she did raise a concern about the fact that the management team was predominately male, but that was not her main focus or concern. The main concern she had and the reason for the meeting, was for the SGB to give proper motivation for each of their recommended candidates. There were flaws in the process which she also raised, but she said to the SGB that she will deal with this in training so that it does not happen again in future.
[37] As to applicant’s experience as Head of house, she testified that she saw that he stated in his application form that he was head of house, but that this term means nothing to her. There is no system of heads of houses in public education. It is not recognised. What is recognised is a post level 1 educator, post level 2 educator (HOD), deputy principal and school principal.
[38] Applicant put it to her during cross-examination that she should have asked the SGB members at the meeting what applicant had done as head of house. Her response was that she did not see the need, and that in any event the SGB members never said during the meeting with her that part of their motivation for recommending applicant as their first choice, was because he was a head of house.
[39] In appointing applicant, she did not only look at the scores of the interviews for all three candidates on the recommendation list of the SGB, but also at their qualifications and experience as contained in their cv’s. In relation to experience, second respondent had 7 years management experience as a post level 2 HOD educator, whereas applicant as a post level 1 educator had none. The appointment that she made was in accordance with the law. The employer can appoint any of the three candidates on the recommendation list of the SGB. By putting second respondent’s name on the list, the SGB also recommended her, albeit not as their first choice. Applicant was not the best candidate. Second respondent was the best candidate on the list of the SGB and that is why she appointed second respondent.
VI THE ARGUMENTS
[40] For the sake of brevity I do not intend to summarise the written arguments here since the written arguments form part of the record. In short applicant submitted that he has proved that he was the best of all the candidates and was treated unfairly, and he asked to be appointed to the post. Both respondents submitted that an unfair labour practice was not committed and that applicant’s claim must be dismissed.
VII DISCUSSION AND FINDINGS
[41] The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”
[42] ELRC collective agreement 3 of 2016, that contains the guidelines for promotion arbitrations, must be considered in determining whether an unfair labour practice relating to promotion has been committed.
[43] An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.
[44] There is no general right to promotion; The only right that an employee has, is to be fairly considered for promotion when a vacancy arises It is expected that the employer should appoint the best candidate when selecting suitable candidates for promotion, subject to affirmative action, if applicable. However, the decision to promote or not to promote falls within the managerial prerogative of the employer. An arbitrator or court is not the employer. It therefore is not the task of the arbitrator or a court to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. The courts have held that in assessing the appointment of an educator made by an education department, “one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions”.
[45] Where an employee is not denied a fair opportunity to compete for a promotional post, then the only basis upon which an arbitrator can interfere with the decision of the employer, is if there was gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed or was arbitrary. As long as the decision of the employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the employer’s decision to appoint.
[46] The courts have held that in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between any irregularity or unfairness that he may proof, and the failure to promote. To do that the applicant needs to show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of ALL the candidates who applied for the position.
[47] Applicant claims that he was the best candidate and asked for an order appointing him to the post. I am satisfied that applicant was not the best of all the candidates who applied for the post.
[48] The fact that the governing body ranked applicant first on their recommendation list, does not mean that therefore he was the best candidate, or that therefore he had to be appointed. The governing body is not the employer. They only make recommendations. The legislation is very clear in this regard. Section 6(3)(c) of the Employment of Educators Act provides that the governing body must submit, in order of preference, to the employer a list of at least three names of recommended candidates, or fewer than three candidates in consultation with the employer. Section 6(3)(f) provides that despite the order of preference on that list, the employer may appoint any suitable candidate on the list. The list that the governing body submitted contained the names of three suitable candidates, which included that of second respondent. Accordingly, the employer was entitled to appoint second respondent, if the employer could conclude that second respondent was a better candidate than applicant.
[49] The mere fact that applicant scored more than second respondent during the interviews, did not mean that he was better than second respondent and that he, and not second respondent should have been appointed. Scores obtained during interviews, do not alone on its own determine which candidate is the best candidate.
[50] It is common cause that the cv’s of the respective candidates were used by the governing body at shortlisting stage in order to decide which external applicants they would shortlist. Internal candidates were automatically shortlisted. After shortlisting the governing body never considered the cv’s of the candidates again. Their scores and recommendations were purely based on the scores obtained during the interviews. There is nothing wrong with that, because the governing body is not the employer, and they merely need to send a recommendation to the employer. However, when the employer makes the appointment, it would be completely irrational of the employer to make an appointment simply based on the fact that the SGB recommended a particular candidate as their first choice, where that recommendation was arrived at merely by means of having regard to the scores during interviews and nothing else.
[51] We do not appoint candidates to teaching positions solely based on how they are scored during interviews. Promotions are not solely based on who has the best communication skills or who can give the best answers during interviews, or who can make the best subjective impression on interview committee members. A candidate with no practical experience on certain issues, may be able to give very impressive answers about it because he has acquired a theoretical knowledge of it. Candidates for managerial positions may sound very convincing when they explain during their interviews what vision they have for the organisation and how they will implement it, without actually being capable, due to lack of practical experience, to implement their visions. It is for these reasons, that the parties to the ELRC, when they negotiated and drafted Collective Agreement 3 of 2016 with my assistance, included the following clause in the agreement:
When making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting.
[52] The director was accordingly not entitled to appoint applicant merely because he was the first choice of the SGB and merely because he scored the highest during interviews. In addition to the final scores allocated for the interviews, the director was also compelled to consider the qualifications and experience of the candidates, as contained in their cv’s. This is what common sense and Collective Agreement 3 of 2016 expected her to do.
[53] I am satisfied that even if one were to accept that the interview scores, namely 135 (90 %) for applicant, and 110 (73,3%) for second respondent, were unbiased and objective scores, and one adds to that the experience and qualifications of the candidates as contained in their cv’s, then second respondent was a better candidate than applicant. That is indeed my finding.
[54] Applicant attempted to persuade me that by virtue of his qualifications he is better suited for the post than second respondent. I do not agree. Applicant’s qualification in labour law does not make him a more suitable candidate than second respondent. Qualifications in labour law cannot assist post level 1, 2 and 3 educators to do their work better.
[55] Insofar as the discipline of learners are concerned, labour law is of no assistance. Labour law concerns the rights and duties of employees and employers. It does not concern the discipline of learners. A knowledge of administrative law and education law will be much more beneficial when disciplining learners. Insofar as discipline of educators are concerned, serious cases must all be dealt with by the employer and not at school level. In respect of the discipline for less serious matters, the employer may delegate his powers to the school principal. Only the principal has the right in terms of delegated powers to discipline educators, and then only for less serious offences. This is a deputy principal post, who does not have the right in terms of the Act to discipline educators.
[56] Insofar as applicant’s ACE qualification in management and leadership, and his Secondary Teachers Diploma is concerned, I do not agree that this puts him at an advantage over second respondent with her ACE in mathematics, and Senior Primary Teachers diploma. A formal qualification in management does not mean that the candidate will in practice necessarily be a good manager and leader.
[57] Practical experience in a managerial position is of much more importance than formal qualifications (in management or any other discipline) when one must select a candidate for appointment to a managerial position.
[58] When the appointment was made, second respondent had 7 years’ experience in a managerial position as HOD on post level 2. Applicant does not fall into that category. Applicant is and has always been a post level 1 educator.
[59] Giving answers during the interviews that impressed the IC to the extent where applicant scored 90% during the interviews, could not transform applicant as a post level 1 educator into a better candidate than second respondent, who had 7 years managerial experience at post level 2, and who scored 73,3% during the interviews.
[60] Applicant claims that he has managerial experience because he was a head of a house at Kensington High School. The school principal testified that although applicant did perform his duties as head of house, being a head of house does not mean that applicant has managerial and leadership experience. I accept the evidence of the principal and I agree with him.
[61] The district director testified that she did not regard applicant’s reference to being head of house as contained in his CV as relevant because there is no such position recognised in public education. I also agree with her.
[62] The reason why experience in post level 2, 3 and 4 positions are important when selecting educators for promotional managerial posts, is because these positions, their job content, and the duties of the incumbents in these positions, are all well defined in PAM, collective agreements and regulations. Educators in these positions can and should be disciplined, or called into incapacity proceedings for poor performance should they not perform satisfactorily in accordance with the duties that PAM and the collective agreements impose on them. When a post level 2 educator with 7 years’ experience in that post therefore applies for a promotion post, and she has not been demoted back to a post level 1 educator for poor performance, this in itself already speaks volumes about her managerial experience and competencies – because if she did not perform well, the expectation would be that her employer would long ago already have demoted her back to being a post level 1 educator.
[63] The position of head of house is not recognised, in PAM or in any ELRC collective agreement, regulation, legislation, or policy. Hence the employer has no jurisdiction to act against a head of house if he does not perform adequately. In fact, the employer would not even know when making an appointment, what a head of house does, because it is not recognised in PAM and it is not a concept that is known in public education in this country.
[64] Applicant’s submission that the director should have asked the SGB what a head of house does, is completely wrong. This would never have been permissible. To have done that would have meant that not only would the director have given applicant (through the SGB) an opportunity to supplement what was written in his cv, but that the SGB would have used their personal knowledge of applicant during the recruitment and selection procedures. This is not permissible. Neither the employer nor the SGB, may take into account experience or qualifications that is not reflected in a cv, and nor may they take into account their personal knowledge of a candidate.
[65] I am well aware that applicant did state in his cv that he was a head of house. But he failed to state in his cv what a head of house is or does. Because a head of house is not known in public education, his statement that he was a head of house, was therefore completely meaningless. Because without asking for additional information as to what it means (which is not permissible), neither an objective impartial governing body (who does not use their personal knowledge of a candidate), nor the employer, would know what a head of house means. All candidates must be treated fairly and equally. It is impossible to treat external candidates fairly and equally when governing bodies use their personal knowledge of an internal candidate to supplement his cv or when an employer permits one candidate to supplement his cv.
[66] A promotion arbitration is not a second bite at the cherry for candidates who applied for promotion posts, to improve their cv’s. It is no use that applicants give evidence in these arbitrations about their practical experience because the only information I should take into account about their practical experience is what I can read for myself in their cv’s and in PAM.
[67] I can see from applicant’s cv that he is a post level 1 educator and that he claims to have experience as head of house, but without additional information, I too, like the employer would not know what a head of house is. PAM does not assist me. Experience as post level 2 educator reflected in a cv on the other hand, needs not be elaborated on because PAM tells me what it is.
[68] Furthermore, even I were wrong in this regard, and even if I were to take into account applicant’s experience as head of house, then I am satisfied that this would still not assist applicant. I accept the evidence of the principal as to what applicant had done as a head of house. My finding is that applicant did not do the work of a manager or leader as head of house. He performed extra-curricular administrative tasks which cannot be compared to the level of administrative, leadership and managerial functions of a post level 2 HOD.
[69] Moreover, if applicant is such a good manager and leader as he claims, by virtue of his qualifications and his experience as head of house, the question then arises, why is he still a post level 1 educator after having been an educator since 1993, and not yet a post level 2 educator? This in itself speaks volumes.
[70] For all these reasons I am satisfied that applicant was not a better candidate than second respondent. Second respondent was a better candidate than applicant when considering in a holistic manner the overall impression left by the scores allocated by the SGB, and the experience and qualifications of the candidates.
[71] This award would not be complete if I do not make remarks about the scores there were allocated. In arriving at my findings, I have simply accepted the scores at face value. It would however be remiss of me not to make remarks about these scores as this may create the impression that the ELRC is condoning the scores given by this governing body and that they can again do in future what they had done in this case. We as ELRC arbitrators are well experienced in assessing scores and we can see when scores are not objective, inaccurate or a sham.
[72] I agree with the principal that these scores are not objective. I find it hard to believe that applicant could have scored 5 out of 5 for so many questions, especially for questions 2 to 5. I have also compared the scores allocated to applicant and second respondent, and compared that to the questions and their answers in the minutes, and I find it difficult to see how the gap in scores between applicant and second respondent can be justified in relation to the answers that they gave.
[73] I am aware that subjective impressions may play a role (a limited role) in allocating scores during interviews. But subjective impressions can never justify the scores that were allocated in this case. Scoring should be mostly objective, supplemented by a slight degree of subjectivity for personal impressions made during the interview. That is not the case here. The reason why these scores are difficult to reconcile with the answers that candidates gave, is in all probability because the SGB was biased in favour of applicant right from the start. There are several reasons why I say they were biased.
[74] Despite the fact that ELRC Resolution 5 of 1998 (and Chapter B of PAM) states that no more than 5 candidates should be shortlisted, and despite the fact that of the 78 candidates who applied for this post, 36 were post level 2 educators, 6 were post level 3 educators, and 3 were post level 4 educators, the governing body nevertheless shortlisted applicant who is only a post level 1 educator. I have noted the reasons why the governing body members claim that they shortlisted all internal post level 1 educators, but their reasoning is not probable. I do not believe them.
[75] The governing body members who testified on behalf of applicant wanted me to believe that they shortlisted internal post level 1 educators simply to give them experience in interviews and motivate them. But yet, they then actually recommended the internal post level 1 educator (namely applicant) as the candidate who must be appointed, and they insisted even after the employer had appointed second respondent, that the applicant must be appointed. If truly the only purpose was to give post level 1 internal candidates exposure to being interviewed, it would have not been such a grave issue for the governing body when applicant was not appointed.
[76] A further indication of their bias, is the fact that during the meeting with the district director, some of the SGB members, particularly the chairperson even mentioned that they wanted a father figure and male for the post. To say now that these were not the reasons why applicant was recommended, does not help them, because if this was not something that played a role, there was no reason to have mentioned this to the director.
[77] Another factor indicating the bias of some of the governing body members, particularly that of the chairperson, is that after the director appointed second respondent, the chairperson Ms Mdunge even wrote a letter to the employer, stating that they REJECT (the word reject was typed in capital letters) the appointment of second respondent and they even threatened to refer the matter to the ELRC.
[78] I have arbitrated hundreds of promotion disputes for the ELRC in all nine provinces for many years and have quality controlled hundreds of arbitration awards in promotion disputes of other ELRC arbitrators, and I cannot recall that I have ever come across a case where a SGB has felt so strongly about the fact that their first choice candidate must be appointed. Their insistence in this regard becomes extremely suspicious when one considers the fact that not only was the applicant an internal candidate, but that furthermore he was a post level 1 educator who applied for a post level 3 position, whereas the SGB had 36 post level 2 educators who applied, 6 post level 3 educators who applied, and 3 post level 4 educators who applied. These facts on their own already raise red flags.
[79] I have already held that second respondent was a better candidate than applicant and have given reasons for this finding. However, even if second respondent was not better than applicant (and I am still convinced that she was better than applicant), there is one further reason why applicant cannot get the relief that he claims namely to be appointed to the post.
[80] The courts have held that in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between any irregularity or unfairness (that he may prove), and the failure to promote. To do that the applicant needs to show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of ALL the candidates who applied for the position.
[81] There were 74 candidates who applied for this post level 3 post. Of them, thirty six (36) applicants were post level 2 educators, six (6) were post level 3 educators, and three (3) were post level 4 educators. I am aware that PAM allows for any educator (irrespective of his post level) to be appointed to the post of deputy principal provided that he has 5 years actual teaching experience. I am also aware that applicant complies with that minimum requirement. When there are no post level 2, 3 or 4 educators who apply for a deputy principal post, and only post level 1 educators apply, then obviously one will appoint a post level 1 educator who has at least 5 years teaching experience. That situation arises from time to time in rural remote areas where many educators do not want to live. But when you have so many post level 2, 3 and even post level 4 educators who apply for a post of deputy principal, it beggars belief why any objective, reasonable governing body or employer would want to appoint a post level 1 educator. It is absurd in the extreme to suggest that applicant as a post level 1 educator could have been better than ALL the other candidates, when there were so many post level 2, 3 and 4 educators who had applied for the post. It would have been irrational for the employer to have appointed applicant under these circumstances. He should not even have been shortlisted. For these reasons too, applicant has not proved that he was the best of ALL the candidate who applied for the post.
[82] Applicant’s claim that the district director had appointed second respondent merely because she is a female and he is a male, is rejected. The reason why second respondent was appointed, is because she was a better candidate than applicant when overall regard is had to the experience and qualifications of the candidates as contained in their cv’s and the scores allocated to them during interviews, namely 135 for applicant, and 110 for second respondent.
[83] As stated earlier in this award, the only right that an employee in a promotion dispute has, is to be fairly considered for promotion when a vacancy arises. Many centuries ago between the years 529 to 534 AD, Emperor Justinian published his Corpus Juris Civilis ("Body of Civil Law") of Roman Law Principles, upon which most western legal systems, including the Roman Dutch common law of South Africa is based. According to Justinian, justice (and fairness) is simply about giving everyone his due.
[84] By having been shortlisted and invited applicant for interviews, applicant as a post level 1 educator already received far more than his due, considering the fact that thirty six (36) applicants were post level 2 educators, six (6) were post level 3 educators, and three (3) were post level 4 educators, and considering the fact that Resolution 5 of 1999 (and PAM) states that the IC should not shortlist more than five candidates. I am satisfied that applicant was fairly considered for promotion.
[85] I am satisfied that in appointing second respondent, and not appointing applicant, the employer did not act unreasonably, arbitrarily or in bad faith, but that the decision was rationally justified. I am also satisfied that second respondent was a better candidate than applicant. My finding is that applicant has failed to establish on a balance of probabilities that an unfair labour practice was committed.
AWARD
In the premises I make and publish the following award:
1. First respondent did not commit an unfair labour practice relating to promotion as intended in section 186(2) of the Labour Relations Act.
2. The appointment of second respondent to the post of deputy principal at Kensington Secondary School is confirmed.
3. Applicant’s claim is dismissed.
4. No order as to costs is made.
D P Van Tonder
ELRC Senior Panellist
Province: Gauteng
Applicant: N F MOLOTO
Respondent: 1st Respondent HOD, Department of Education, G and 2nd Respondent M MAGATA
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtually
Award Date: 21 October 2020
Arbitrator: D P Van Tonder
Case No PSES741-19/20GP
In the matter between
N F MOLOTO Applicant
and
HOD, Department of Education,GP First Respondent
M MAGATA Second Respondent
ARBITRATOR: D P Van Tonder
HEARD: 29 July 2020; 3 and 12 August 2020
7 and 8 September 2020
5 October 2020
FINALISED: 12 October 2020
DELIVERED: 21 October 2020
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – Unfair Labour Practice – Promotion
ARBITRATION AWARD
Table of Contents
I THE PARTIES 3
II PROCEDURAL HISTORY 3
III THE ISSUES TO BE DETERMINED 3
IV BACKGROUND 4
V SUMMARY OF THE EVIDENCE 5
VI THE ARGUMENTS 17
VII DISCUSSION AND FINDINGS 17
AWARD 39
I THE PARTIES
Applicant
[1] The applicant is Mr Nare Frank Moloto who appeared in person and represented himself.
Respondents
[2] First respondent is the Provincial Head of Department of the Gauteng Department of Education and was represented by an employee Mr M Hlapolosa. Second respondent is Ms M E Magata who appeared in person and represented herself.
II PROCEDURAL HISTORY
[3] After an unsuccessful conciliation before another panellist, the matter was referred to arbitration and I was appointed as arbitrator. Due to COVID19 evidence was heard during virtual Zoom meetings on 29 July, 3 and 12 August, 7 and 8 September and 5 October 2020. The proceedings were digitally recorded. The arbitration was finalised when I received the final written closing arguments on 12 October 2020.
III THE ISSUES TO BE DETERMINED
[4] I am required to determine whether an unfair labour practice was committed by first respondent, and if so, the appropriate relief.
IV BACKGROUND
[5] Applicant is a post level 1 educator at Kensington Secondary School. He has been employed as an educator since 1993 and has been employed by first respondent since 2003.
[6] Applicant has referred a promotion dispute involving post number JE39ED1007 at Kensington Secondary School in Johannesburg, being the post of deputy principal (post level 3), advertised by first respondent in vacancy list 3 of 2019. The advertised criteria for the post was leadership, administration and management skills related to the specific school type. The school type is an ordinary secondary school. Approximately 74 candidates applied for the post. Fourteen candidates were shortlisted. Eleven of the shortlisted candidates, including applicant and second respondent were interviewed.
[7] After the interviews and ratification meeting the school governing body sent a recommendation list to the employer containing the names of three candidates. Applicant was the first candidate on the list, and second respondent was the second candidate on the list. On 16 October 2019 a district director who has delegated authority from the first respondent to appoint deputy principals, appointed second respondent to the post with effect from 1 November 2019.
[8] Applicant claims that he was the best candidate and that the employer acted unfairly by having promoted second respondent and not him to the post. He asks to be promoted to the post. Respondents are disputing that applicant was the best of all the candidates and ask for applicant’s claim to be dismissed.
V BRIEF SUMMARY OF THE EVIDENCE
Documentary evidence
[9] Various documents were submitted as part of the evidence and are contained in pdf bundles marked A to L. I do not intend to summarise the documentary evidence, and will refer to documents if and where necessary during my discussion of the evidence and arguments. I did however peruse all the documentary evidence that was referred to during the evidence.
Evidence on behalf of applicant
[10] Frank Nare Moloto, the applicant testified that he was the best of all the candidates and asked for an order appointing him to the post. In motivating his request, he testified that he scored the highest during interviews namely 135, whereas second respondent scored 110. The SGB recommended him as their preferred candidate.
[11] He further testified that in relation to qualifications, he was also the best candidate. He holds a secondary teachers diploma whereas second respondent holds a senior primary teachers diploma. His ACE qualification is in leadership and management whereas that of second respondent is in mathematics. He also holds a post graduate diploma in labour law.
[12] As regards managerial experience, he does not dispute that second respondent has been a post level 2 HOD for 7 years, whereas he is a post level 1 educator. He however believes that he has better managerial and leadership experience than second respondent by virtue of his experience as Head of House at Kensington Secondary School. He is also a member of the SGB.
[13] He is of the view that the reason why the employer appointed second respondent and not him, is because of employment equity. The district director was of the view that the school management team would be predominantly male if he was appointed. This he submitted was impermissible because according to the employer’s employment equity profiles and targets, men are underrepresented on post level 3. Furthermore, there are many schools in the area where the entire SMT consists of males.
[14] In selecting him as the best candidate and their preferred candidate, the SGB did not act unfairly. All the internal applicants (including post level 1 educators) were shortlisted, but external post level 1 educators were not shortlisted. The SGB never changed any criteria to accommodate him.
[15] Jabu Mbuli testified that he had been a parent member of the SGB since 2018. He has taken part in two interviews and training sessions for the appointment of educators at the school. The criteria that they have used for this post, namely to shortlist all internal candidates, were the same criteria that they had used in the past. The reason why the SGB shortlists all internal candidates is to ensure that the internal candidates get exposure to questions during interviews so that if they have another chance in future to be invited to interviews, then they would have had exposure already. The second reason why they shortlisted all internal candidates, was for motivational purposes. Educators are unhappy when one educator at the school is invited for interviews, but other educators at the school are not invited for interviews.
[16] They used scores to arrive at their recommendation because this eliminates discussions after scoring. The IC consisted of 3 educator members and 5 parent members. Only the 5 parent members and one teacher member scored.
[17] One member suggested that only the parent members must score. The principal remained neutral and did not score and the one teacher member took notes and also did not score. Asked as to whether they compared their answers to the list of model answers that were drawn up, he testified that the list just contained possible answers and that they could not all score the same based on what they heard because they are all different individuals.
[18] When the district director asked to meet with the SGB after they had sent in their recommendation, members of the SGB wanted to know why she wanted to meet with them as this had never happened before. During the meeting the director wanted the SGB to motivate their recommendation. She said that there were flaws in the process and also mentioned that the SMT at the school was predominantly male whereas the preferred candidate of the SGB was also male. The district director said that she would revert to them, but she never did. She went ahead and appointed second respondent without further consultation with the SGB. The SGB rejected the appointment of second respondent and complained to the department.
[19] Belinda Rollison testified that she is an educator member of the SGB at Kensington Secondary. She took minutes during the interviews and did not score. In this process the SGB followed the same practice that they had followed in the past namely to automatically shortlist all internal candidates, including post level 1 educators. This was to motive internal candidates and give them exposure. This practice was never questioned before.
[20] The list of model answers that the SGB had during the interviews, was just a guideline and not a memorandum. During the meeting that the district director had with the SGB, she mentioned that there were flaws in the process but that she can excuse them. The director wanted them to motivate why they had preferred applicant. The director was unhappy about the fact that the preferred candidate of the SGB was a male.
[21] The director never came back to the SGB after the meeting and before she appointed second respondent. When requested to do so, she submitted all the minutes that she took during the interviews as well as the minutes that she took during the meeting with the district director.
[22] Thandazo Mdunge testified that she is a parent member and chairperson of the SGB. She has taken part in three training sessions and three sets of interviews for the appointment of educators at the school. This was her third set of interviews.
[23] In the past the SGB had automatically shortlisted all internal candidates. This was never questioned. In this process they followed the same practice again.
[24] According to her understanding, a head of house deals with administration, learners, sports, discipline and curriculum. When asked what curriculum the head of house deals with, she responded that she does not know. Asked by applicant whether a head of house is a leader or manager, she first replied that she does not understand the question. Applicant then followed this up with another leading question and asked whether if a head of house is a leader, to which she responded, yes. During cross-examination she testified that a head of house does 80% of what an HOD does and that a school can function without an HOD but not without a head of house.
[25] The list of model answers that they had was complied with the assistance of the principal and some of the educator members on the panel. If a candidate said something that was not contained in the model answer, then it was not necessarily wrong.
[26] She testified that during the meeting with the district director, the director wanted the SGB to motivate their recommendation. She did motivate, because she had so many reasons why she wanted applicant to be appointed to the post. She explained that they were looking for a strong male father figure who is good with discipline. The director also wanted to know why they had preferred a male over a female. It was not a requirement that they had to appoint a female as gender equity was not one of the criteria. The director also mentioned that there were flaws in the process but that she was prepared to overlook it.
[27] After the meeting, the director never came back to the SGB again. She appointed second respondent without further consultation. She as chairperson, and other members of the SGB, then wrote a letter to the employer to complain about the non-appointment of applicant, because the appointment of second respondent went against their recommendation.
Evidence on behalf of first respondent (employer)
[28] Tlou Moloto, testified that he is the school principal of Kensington Secondary. He has been employed at this school since 2012 and he became the principal in June 2018.
[29] The system of heads of houses was a system that was introduced in 2015 by the previous school principal who came from a sports school where they had used the head of house system. The SGB paid the heads of houses for being head of house. When he became principal, the head of house system was still in place, but the system did not work in Kensington Secondary. The only head of house who was actively involved in the system was applicant in his capacity as sports organiser. Because the system did not work, it was discontinued.
[30] According to him, a head of house is not a manager. The management of the school is taken care of by the SMT, consisting of the principal, deputy principal and post level 2 HOD educators. There is not another hierarchy of management in the school. The houses are not departmental structures. It is not a recognised system.
[31] He does not agree that heads of houses were responsible for discipline of learners merely by virtue of being a head of house. There is a disciplinary committee, and any educator, including an educator who happens to be a head of house, could be a member of that committee. Whatever was done in a head of house, was extra-curricular in nature.
[32] He decided not to score during the interviews for this post, because of what happened in a previous process. He therefore rather decided to remain neutral. The list of model answers that the SGB had, was a memorandum. Panellists were meant to score according to that memorandum. If panel members only saw the document as guidelines, and scored without reference to the memorandum, then the scoring was subjective and not objective. He was asked during his evidence to look at the scores that panellists allocated to certain candidates during the interviews and more particularly to the fact that applicant was scored full marks by certain panel members for certain questions. His response was that for question number 1 it was possible to score 5 out of 5, but that due to the nature of the questions, it was simply not possible for a candidate to score 5 out of 5 for questions 2 to 5, and yet applicant was scored 5 out of 5 by some of the panel members for questions 1, 2, 3, 4, and 5. He is of the view that these cannot be objective scores.
[33] Despite being a member of the governing body, he had no knowledge of the letter that certain members of the SGB wrote to the employer after second respondent was appointed, in which they objected to the fact that second respondent and not applicant was appointed. Nobody ever consulted him about the intention to write such a letter and it was written without his knowledge.
[34] Shirley Molobi testified that she is employed by first respondent as the district director for the Johannesburg East District. She became a district director in 2011 in another district and was transferred to the Johannesburg East district on 1 February 2019. She has delegated authority from the first respondent to appoint all deputy principals in her district. In this regard she referred to the delegations, contained in the bundles of documents. She did not know applicant, second respondent or the third candidate on the recommendation list of the SGB when she appointed second respondent in this post.
[35] After she received the recommendation from the SGB for this post, she perused it together with all the other documentation. She was not satisfied with the motivations that the SGB gave for their recommendation and she accordingly decided to meet the SGB to give them an opportunity to motivate.
[36] At the meeting they only motivated why they wanted applicant to be appointed, and did not say anything about the other candidates. As to why the SGB wanted her to appoint applicant, some of the reasons that they gave to her, included the fact that they wanted a father figure and a disciplinarian and that applicant arrives early at school. In essence, the SGB members did not address the concerns that she had about their lack of proper motivation. During the meeting with the SGB, she did raise a concern about the fact that the management team was predominately male, but that was not her main focus or concern. The main concern she had and the reason for the meeting, was for the SGB to give proper motivation for each of their recommended candidates. There were flaws in the process which she also raised, but she said to the SGB that she will deal with this in training so that it does not happen again in future.
[37] As to applicant’s experience as Head of house, she testified that she saw that he stated in his application form that he was head of house, but that this term means nothing to her. There is no system of heads of houses in public education. It is not recognised. What is recognised is a post level 1 educator, post level 2 educator (HOD), deputy principal and school principal.
[38] Applicant put it to her during cross-examination that she should have asked the SGB members at the meeting what applicant had done as head of house. Her response was that she did not see the need, and that in any event the SGB members never said during the meeting with her that part of their motivation for recommending applicant as their first choice, was because he was a head of house.
[39] In appointing applicant, she did not only look at the scores of the interviews for all three candidates on the recommendation list of the SGB, but also at their qualifications and experience as contained in their cv’s. In relation to experience, second respondent had 7 years management experience as a post level 2 HOD educator, whereas applicant as a post level 1 educator had none. The appointment that she made was in accordance with the law. The employer can appoint any of the three candidates on the recommendation list of the SGB. By putting second respondent’s name on the list, the SGB also recommended her, albeit not as their first choice. Applicant was not the best candidate. Second respondent was the best candidate on the list of the SGB and that is why she appointed second respondent.
VI THE ARGUMENTS
[40] For the sake of brevity I do not intend to summarise the written arguments here since the written arguments form part of the record. In short applicant submitted that he has proved that he was the best of all the candidates and was treated unfairly, and he asked to be appointed to the post. Both respondents submitted that an unfair labour practice was not committed and that applicant’s claim must be dismissed.
VII DISCUSSION AND FINDINGS
[41] The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”
[42] ELRC collective agreement 3 of 2016, that contains the guidelines for promotion arbitrations, must be considered in determining whether an unfair labour practice relating to promotion has been committed.
[43] An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.
[44] There is no general right to promotion; The only right that an employee has, is to be fairly considered for promotion when a vacancy arises It is expected that the employer should appoint the best candidate when selecting suitable candidates for promotion, subject to affirmative action, if applicable. However, the decision to promote or not to promote falls within the managerial prerogative of the employer. An arbitrator or court is not the employer. It therefore is not the task of the arbitrator or a court to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. The courts have held that in assessing the appointment of an educator made by an education department, “one does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions”.
[45] Where an employee is not denied a fair opportunity to compete for a promotional post, then the only basis upon which an arbitrator can interfere with the decision of the employer, is if there was gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed or was arbitrary. As long as the decision of the employer can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the employer’s decision to appoint.
[46] The courts have held that in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between any irregularity or unfairness that he may proof, and the failure to promote. To do that the applicant needs to show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of ALL the candidates who applied for the position.
[47] Applicant claims that he was the best candidate and asked for an order appointing him to the post. I am satisfied that applicant was not the best of all the candidates who applied for the post.
[48] The fact that the governing body ranked applicant first on their recommendation list, does not mean that therefore he was the best candidate, or that therefore he had to be appointed. The governing body is not the employer. They only make recommendations. The legislation is very clear in this regard. Section 6(3)(c) of the Employment of Educators Act provides that the governing body must submit, in order of preference, to the employer a list of at least three names of recommended candidates, or fewer than three candidates in consultation with the employer. Section 6(3)(f) provides that despite the order of preference on that list, the employer may appoint any suitable candidate on the list. The list that the governing body submitted contained the names of three suitable candidates, which included that of second respondent. Accordingly, the employer was entitled to appoint second respondent, if the employer could conclude that second respondent was a better candidate than applicant.
[49] The mere fact that applicant scored more than second respondent during the interviews, did not mean that he was better than second respondent and that he, and not second respondent should have been appointed. Scores obtained during interviews, do not alone on its own determine which candidate is the best candidate.
[50] It is common cause that the cv’s of the respective candidates were used by the governing body at shortlisting stage in order to decide which external applicants they would shortlist. Internal candidates were automatically shortlisted. After shortlisting the governing body never considered the cv’s of the candidates again. Their scores and recommendations were purely based on the scores obtained during the interviews. There is nothing wrong with that, because the governing body is not the employer, and they merely need to send a recommendation to the employer. However, when the employer makes the appointment, it would be completely irrational of the employer to make an appointment simply based on the fact that the SGB recommended a particular candidate as their first choice, where that recommendation was arrived at merely by means of having regard to the scores during interviews and nothing else.
[51] We do not appoint candidates to teaching positions solely based on how they are scored during interviews. Promotions are not solely based on who has the best communication skills or who can give the best answers during interviews, or who can make the best subjective impression on interview committee members. A candidate with no practical experience on certain issues, may be able to give very impressive answers about it because he has acquired a theoretical knowledge of it. Candidates for managerial positions may sound very convincing when they explain during their interviews what vision they have for the organisation and how they will implement it, without actually being capable, due to lack of practical experience, to implement their visions. It is for these reasons, that the parties to the ELRC, when they negotiated and drafted Collective Agreement 3 of 2016 with my assistance, included the following clause in the agreement:
When making an appointment, both the qualifications and experience as recorded in the curriculum vitae submitted by candidates together with performance during interviews must be taken into account. It is irrational to make an appointment purely based on performance during interviews or to reason that the experience and qualifications as contained in curriculum vitae become irrelevant after shortlisting.
[52] The director was accordingly not entitled to appoint applicant merely because he was the first choice of the SGB and merely because he scored the highest during interviews. In addition to the final scores allocated for the interviews, the director was also compelled to consider the qualifications and experience of the candidates, as contained in their cv’s. This is what common sense and Collective Agreement 3 of 2016 expected her to do.
[53] I am satisfied that even if one were to accept that the interview scores, namely 135 (90 %) for applicant, and 110 (73,3%) for second respondent, were unbiased and objective scores, and one adds to that the experience and qualifications of the candidates as contained in their cv’s, then second respondent was a better candidate than applicant. That is indeed my finding.
[54] Applicant attempted to persuade me that by virtue of his qualifications he is better suited for the post than second respondent. I do not agree. Applicant’s qualification in labour law does not make him a more suitable candidate than second respondent. Qualifications in labour law cannot assist post level 1, 2 and 3 educators to do their work better.
[55] Insofar as the discipline of learners are concerned, labour law is of no assistance. Labour law concerns the rights and duties of employees and employers. It does not concern the discipline of learners. A knowledge of administrative law and education law will be much more beneficial when disciplining learners. Insofar as discipline of educators are concerned, serious cases must all be dealt with by the employer and not at school level. In respect of the discipline for less serious matters, the employer may delegate his powers to the school principal. Only the principal has the right in terms of delegated powers to discipline educators, and then only for less serious offences. This is a deputy principal post, who does not have the right in terms of the Act to discipline educators.
[56] Insofar as applicant’s ACE qualification in management and leadership, and his Secondary Teachers Diploma is concerned, I do not agree that this puts him at an advantage over second respondent with her ACE in mathematics, and Senior Primary Teachers diploma. A formal qualification in management does not mean that the candidate will in practice necessarily be a good manager and leader.
[57] Practical experience in a managerial position is of much more importance than formal qualifications (in management or any other discipline) when one must select a candidate for appointment to a managerial position.
[58] When the appointment was made, second respondent had 7 years’ experience in a managerial position as HOD on post level 2. Applicant does not fall into that category. Applicant is and has always been a post level 1 educator.
[59] Giving answers during the interviews that impressed the IC to the extent where applicant scored 90% during the interviews, could not transform applicant as a post level 1 educator into a better candidate than second respondent, who had 7 years managerial experience at post level 2, and who scored 73,3% during the interviews.
[60] Applicant claims that he has managerial experience because he was a head of a house at Kensington High School. The school principal testified that although applicant did perform his duties as head of house, being a head of house does not mean that applicant has managerial and leadership experience. I accept the evidence of the principal and I agree with him.
[61] The district director testified that she did not regard applicant’s reference to being head of house as contained in his CV as relevant because there is no such position recognised in public education. I also agree with her.
[62] The reason why experience in post level 2, 3 and 4 positions are important when selecting educators for promotional managerial posts, is because these positions, their job content, and the duties of the incumbents in these positions, are all well defined in PAM, collective agreements and regulations. Educators in these positions can and should be disciplined, or called into incapacity proceedings for poor performance should they not perform satisfactorily in accordance with the duties that PAM and the collective agreements impose on them. When a post level 2 educator with 7 years’ experience in that post therefore applies for a promotion post, and she has not been demoted back to a post level 1 educator for poor performance, this in itself already speaks volumes about her managerial experience and competencies – because if she did not perform well, the expectation would be that her employer would long ago already have demoted her back to being a post level 1 educator.
[63] The position of head of house is not recognised, in PAM or in any ELRC collective agreement, regulation, legislation, or policy. Hence the employer has no jurisdiction to act against a head of house if he does not perform adequately. In fact, the employer would not even know when making an appointment, what a head of house does, because it is not recognised in PAM and it is not a concept that is known in public education in this country.
[64] Applicant’s submission that the director should have asked the SGB what a head of house does, is completely wrong. This would never have been permissible. To have done that would have meant that not only would the director have given applicant (through the SGB) an opportunity to supplement what was written in his cv, but that the SGB would have used their personal knowledge of applicant during the recruitment and selection procedures. This is not permissible. Neither the employer nor the SGB, may take into account experience or qualifications that is not reflected in a cv, and nor may they take into account their personal knowledge of a candidate.
[65] I am well aware that applicant did state in his cv that he was a head of house. But he failed to state in his cv what a head of house is or does. Because a head of house is not known in public education, his statement that he was a head of house, was therefore completely meaningless. Because without asking for additional information as to what it means (which is not permissible), neither an objective impartial governing body (who does not use their personal knowledge of a candidate), nor the employer, would know what a head of house means. All candidates must be treated fairly and equally. It is impossible to treat external candidates fairly and equally when governing bodies use their personal knowledge of an internal candidate to supplement his cv or when an employer permits one candidate to supplement his cv.
[66] A promotion arbitration is not a second bite at the cherry for candidates who applied for promotion posts, to improve their cv’s. It is no use that applicants give evidence in these arbitrations about their practical experience because the only information I should take into account about their practical experience is what I can read for myself in their cv’s and in PAM.
[67] I can see from applicant’s cv that he is a post level 1 educator and that he claims to have experience as head of house, but without additional information, I too, like the employer would not know what a head of house is. PAM does not assist me. Experience as post level 2 educator reflected in a cv on the other hand, needs not be elaborated on because PAM tells me what it is.
[68] Furthermore, even I were wrong in this regard, and even if I were to take into account applicant’s experience as head of house, then I am satisfied that this would still not assist applicant. I accept the evidence of the principal as to what applicant had done as a head of house. My finding is that applicant did not do the work of a manager or leader as head of house. He performed extra-curricular administrative tasks which cannot be compared to the level of administrative, leadership and managerial functions of a post level 2 HOD.
[69] Moreover, if applicant is such a good manager and leader as he claims, by virtue of his qualifications and his experience as head of house, the question then arises, why is he still a post level 1 educator after having been an educator since 1993, and not yet a post level 2 educator? This in itself speaks volumes.
[70] For all these reasons I am satisfied that applicant was not a better candidate than second respondent. Second respondent was a better candidate than applicant when considering in a holistic manner the overall impression left by the scores allocated by the SGB, and the experience and qualifications of the candidates.
[71] This award would not be complete if I do not make remarks about the scores there were allocated. In arriving at my findings, I have simply accepted the scores at face value. It would however be remiss of me not to make remarks about these scores as this may create the impression that the ELRC is condoning the scores given by this governing body and that they can again do in future what they had done in this case. We as ELRC arbitrators are well experienced in assessing scores and we can see when scores are not objective, inaccurate or a sham.
[72] I agree with the principal that these scores are not objective. I find it hard to believe that applicant could have scored 5 out of 5 for so many questions, especially for questions 2 to 5. I have also compared the scores allocated to applicant and second respondent, and compared that to the questions and their answers in the minutes, and I find it difficult to see how the gap in scores between applicant and second respondent can be justified in relation to the answers that they gave.
[73] I am aware that subjective impressions may play a role (a limited role) in allocating scores during interviews. But subjective impressions can never justify the scores that were allocated in this case. Scoring should be mostly objective, supplemented by a slight degree of subjectivity for personal impressions made during the interview. That is not the case here. The reason why these scores are difficult to reconcile with the answers that candidates gave, is in all probability because the SGB was biased in favour of applicant right from the start. There are several reasons why I say they were biased.
[74] Despite the fact that ELRC Resolution 5 of 1998 (and Chapter B of PAM) states that no more than 5 candidates should be shortlisted, and despite the fact that of the 78 candidates who applied for this post, 36 were post level 2 educators, 6 were post level 3 educators, and 3 were post level 4 educators, the governing body nevertheless shortlisted applicant who is only a post level 1 educator. I have noted the reasons why the governing body members claim that they shortlisted all internal post level 1 educators, but their reasoning is not probable. I do not believe them.
[75] The governing body members who testified on behalf of applicant wanted me to believe that they shortlisted internal post level 1 educators simply to give them experience in interviews and motivate them. But yet, they then actually recommended the internal post level 1 educator (namely applicant) as the candidate who must be appointed, and they insisted even after the employer had appointed second respondent, that the applicant must be appointed. If truly the only purpose was to give post level 1 internal candidates exposure to being interviewed, it would have not been such a grave issue for the governing body when applicant was not appointed.
[76] A further indication of their bias, is the fact that during the meeting with the district director, some of the SGB members, particularly the chairperson even mentioned that they wanted a father figure and male for the post. To say now that these were not the reasons why applicant was recommended, does not help them, because if this was not something that played a role, there was no reason to have mentioned this to the director.
[77] Another factor indicating the bias of some of the governing body members, particularly that of the chairperson, is that after the director appointed second respondent, the chairperson Ms Mdunge even wrote a letter to the employer, stating that they REJECT (the word reject was typed in capital letters) the appointment of second respondent and they even threatened to refer the matter to the ELRC.
[78] I have arbitrated hundreds of promotion disputes for the ELRC in all nine provinces for many years and have quality controlled hundreds of arbitration awards in promotion disputes of other ELRC arbitrators, and I cannot recall that I have ever come across a case where a SGB has felt so strongly about the fact that their first choice candidate must be appointed. Their insistence in this regard becomes extremely suspicious when one considers the fact that not only was the applicant an internal candidate, but that furthermore he was a post level 1 educator who applied for a post level 3 position, whereas the SGB had 36 post level 2 educators who applied, 6 post level 3 educators who applied, and 3 post level 4 educators who applied. These facts on their own already raise red flags.
[79] I have already held that second respondent was a better candidate than applicant and have given reasons for this finding. However, even if second respondent was not better than applicant (and I am still convinced that she was better than applicant), there is one further reason why applicant cannot get the relief that he claims namely to be appointed to the post.
[80] The courts have held that in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between any irregularity or unfairness (that he may prove), and the failure to promote. To do that the applicant needs to show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of ALL the candidates who applied for the position.
[81] There were 74 candidates who applied for this post level 3 post. Of them, thirty six (36) applicants were post level 2 educators, six (6) were post level 3 educators, and three (3) were post level 4 educators. I am aware that PAM allows for any educator (irrespective of his post level) to be appointed to the post of deputy principal provided that he has 5 years actual teaching experience. I am also aware that applicant complies with that minimum requirement. When there are no post level 2, 3 or 4 educators who apply for a deputy principal post, and only post level 1 educators apply, then obviously one will appoint a post level 1 educator who has at least 5 years teaching experience. That situation arises from time to time in rural remote areas where many educators do not want to live. But when you have so many post level 2, 3 and even post level 4 educators who apply for a post of deputy principal, it beggars belief why any objective, reasonable governing body or employer would want to appoint a post level 1 educator. It is absurd in the extreme to suggest that applicant as a post level 1 educator could have been better than ALL the other candidates, when there were so many post level 2, 3 and 4 educators who had applied for the post. It would have been irrational for the employer to have appointed applicant under these circumstances. He should not even have been shortlisted. For these reasons too, applicant has not proved that he was the best of ALL the candidate who applied for the post.
[82] Applicant’s claim that the district director had appointed second respondent merely because she is a female and he is a male, is rejected. The reason why second respondent was appointed, is because she was a better candidate than applicant when overall regard is had to the experience and qualifications of the candidates as contained in their cv’s and the scores allocated to them during interviews, namely 135 for applicant, and 110 for second respondent.
[83] As stated earlier in this award, the only right that an employee in a promotion dispute has, is to be fairly considered for promotion when a vacancy arises. Many centuries ago between the years 529 to 534 AD, Emperor Justinian published his Corpus Juris Civilis ("Body of Civil Law") of Roman Law Principles, upon which most western legal systems, including the Roman Dutch common law of South Africa is based. According to Justinian, justice (and fairness) is simply about giving everyone his due.
[84] By having been shortlisted and invited applicant for interviews, applicant as a post level 1 educator already received far more than his due, considering the fact that thirty six (36) applicants were post level 2 educators, six (6) were post level 3 educators, and three (3) were post level 4 educators, and considering the fact that Resolution 5 of 1999 (and PAM) states that the IC should not shortlist more than five candidates. I am satisfied that applicant was fairly considered for promotion.
[85] I am satisfied that in appointing second respondent, and not appointing applicant, the employer did not act unreasonably, arbitrarily or in bad faith, but that the decision was rationally justified. I am also satisfied that second respondent was a better candidate than applicant. My finding is that applicant has failed to establish on a balance of probabilities that an unfair labour practice was committed.
AWARD
In the premises I make and publish the following award:
1. First respondent did not commit an unfair labour practice relating to promotion as intended in section 186(2) of the Labour Relations Act.
2. The appointment of second respondent to the post of deputy principal at Kensington Secondary School is confirmed.
3. Applicant’s claim is dismissed.
4. No order as to costs is made.
D P Van Tonder
ELRC Senior Panellist