Award  Date:
5 November 2020
Case Number: PSES666-18/19NC
Province: Northern Cape
Applicant: PSA obo Rubene May
Respondent: Department of Education Northern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtually
Award Date: 5 November 2020
Arbitrator: Luyanda Dumisa
Case Number: PSES666-18/19NC
Commissioner: Luyanda Dumisa
Date of Award: 05 November 2020

In the ARBITRATION between

PSA obo Rubene May


Department of Education - Northern Cape


1. The arbitration proceedings were set down for hearing on 28 October 2020 via virtual hearing on Zoom. The Applicant Rubene May (May) was represented by Eugen Louw (Louw) a trade union official from Public Servants Association of South Africa (PSA).
2. The Respondent, Department of Education- Northern Cape was represented by Paul Muller (Muller) Labour Relations Officer.
3. The interpretation services, in Afrikaans and English, were provided B. Banga.
4. The bundle of documents were submitted by both parties and the parties used these documents to substantiate their claims.
5. The parties agreed to submit their closing arguments in writing by no later than 05 November 2020 and upon receipt they were duly considered in making this award.
6. The arbitration was held under the auspices of the ELRC in terms of its Constitution. The proceedings were both digitally and manually recorded.
7. I am required to determine whether or not the Respondent's conduct of not shortlisting the Applicant for the promotional post in question amounted to an unfair labour practice. If yes, I must make a determination on the appropriate remedy.
8. The Respondent's mandate is to provide compulsory basic education to all learners in Northern Cape and the Applicant was appointed as an Educator at Oranje Oewer Intermediate School in Upington.
9. The parties concluded a pre-arbitration minutes in which the following were recorded as common cause facts:
10. The Applicant was appointed by the Respondent on 01 January 2013 as an Educator.
11. The Applicant applied for two (2) posts of Head of Department, in Intermediate Phase and in Senior Phase and she was not shortlisted for both posts. The Applicant in this matter challenges the Respondent's decision not to short list her.
12. It was also not in dispute that the Applicant acted as HOD in Intermediate Phase in 2015 and 2018 and 2017 in Senior Phase.
13. The Applicant sought to be compensated and to be promoted.

Applicant’s case:
May's testimony under oath is as follows:
14. That she applied for promotional posts of HOD in Intermediate and Senior Phase posts. The Respondent did not shortlist her despite her meeting the requirements for HOD position.
15. The circular number 62/2017 for the appointment at Departmental level provides that in order to be eligible for the Departmental Heard role, a teacher must:
(a) Have a recognised three - or four year qualification, which includes professional teacher education;
(b) Be registered with SACE as professional educator.
(c) Be an appointed post level 1 educator in a substantive post;
(d) Have at least 3 years total teaching experience in the relevant phase and relevant subject or field.
16. She said she met all the above requirements because she has a four year teacher qualification namely National Professional Diploma in Education in Foundation Phase, she is registered with SACE, occupying a post level 1 substantive post and that she has more than 3 year experience in the Intermediate phase. That she has never taught at the Foundation Phase ever since she was employed by the Department as a temporary staff member in 2010 and including when she was permanently employed in 2013 to date.
17. That she acted as an HOD Intermediate Phase in 2015 and 2018 and also in senior Phase in 2017.
18. She has a good performance score between 3 and 4Integrated Quality Management Systems (IQMS) evaluation processes.
19. There is nowhere in the circular(62/2017) that for one to apply for an HOD level post, one must be qualified in the Intermediate Phase or Senior Phase.
20. The Applicant's representative argued that the Applicant had 8 years’ experience in Intermediate Phase teaching and she met the requirements as enshrined in the policy /circular.

Respondent's case
Miller 's testimony on behalf the Respondent under oath is as follows:
21. The Applicant applied for the post in Intermediate and Senior Phase without the relevant qualification namely a Diploma/ Degree in Intermediate Phase. The Applicant only has a National Professional Diploma in Education in Foundation Phase and did not meet the post profile as per her qualification.
22. Whilst the Applicant and another educator, LZ Sibondana were acting in the position of HOD Intermediate Phase in August 2018 they were made aware that they did not qualify to hold the HOD vacant post that they were acting in and their attention was drawn to circular 62/2017 which stipulated the eligibility for Departmental Head level. They were stopped from continuing to hold HOD offices.
23. The Department reserves the right to rectify any error or omission it might have made previously.
24. The vacancy circular was clear that the post was for Intermediate and Senior Phases.
25. The Respondent had made a mistake by appointing the Applicant in acting post of HOD in Intermediate Phase / Senior Phase without proper qualification and this cannot be continued as it was a wrong committed in the past.
26. The Respondent's argued that the Applicant did not possess the relevant Phase qualification on the basis that she has a National Professional Diploma in Education in Foundation Phase which disqualified her for Intermediate or Senior Phase teaching.
27. The Applicant was not shortlisted because she did not meet all the requirements owing to her academic qualifications.

28. Section 138(7) of the LRA requires me to issue an arbitration award with brief reasons. What follows is a summary of evidence and arguments presented at the arbitration relevant to my findings.
29. Section 185 provides that every employee has a right not to be subjected to unfair labour practice.
30. Section 186(2)(a) of the LRA describes an unfair labour practice as any act or omission that arises between an employer and an employee amongst others things involving unfair conduct by the employer relating to promotion, demotion, or training of an employee or relating to the provisions of benefits to an employee.
31. The Applicant's contention is that she applied for Intermediate Phase and Senior Phase HOD posts and she met all the requirements but she was not shortlisted.
32. The Respondent's contention is that the Applicant did not meet the post requirements as per qualification. The posts were for Intermediate and Senior Phases and the Applicant's qualification was for teaching at Foundation Phase.
33. The most probable version is that of the Respondent that the Applicant did not qualify for the HOD posts simply because her qualification is for teaching at Foundation Phase, for the following reasons:
34. The evidence has established that the Applicant did not possess a qualification relevant for the Intermediate Phase or Senior Phase but that she has a National Diploma in Education in Foundation Phase. The posts that the Applicant applied for, were for Intermediate Phase and for Senior Phase HODs, and the Applicant based on her qualification, did not meet the requirements of the post in light of the vacancy circular.
35. The posts are for Intermediate and Senior Phase HODs and the Applicant has a Foundation Phase qualification, flowing from this is that the Applicant is not eligible to teach at Intermediate Phase or at Senior Phase and a logical conclusion is that she is totally disqualified from applying for HOD in Intermediate Phase or in Senior Phase based on her academic qualification despite her experience.
36. The Applicant was made aware of the fact that she did not qualify to hold the office of Intermediate HOD position in 2018 whilst she was acting. She was not short listed which shows that she did not meet all the inherent requirements of the posts she applied for.
37. It is my considered view, that that it is not enough for the Applicant to show me that she met the minimum requirements required for the Intermediate Phase or Senior Phase HOD posts but it is important for the Applicant to show me that she met the inherent requirements of the posts and in this regard she failed.
38. It is judicially notorious that the Foundation Phase Education Diploma allows a teacher to teach learners from grade R to 3 whereas the Intermediate Phase Degree equip the teacher to teach intermediate (grade 4 to 7) and Senior Phase (grade 8 to 12 or FET.)
39. The Applicant party failed to show that she met the inherent requirements of the posts she applied for based on her academic qualification as the integral part of the posts and hence she was not shortlisted. This by no means amounts to unfair labour practice.
40. I therefore find that the Respondent's conduct of not shortlisting the Applicant did not amount to unfair labour practice.

41. The Respondent's (Department Of Education-Northern Cape) conduct by not shortlisting the Applicant (Rubene May) for a promotional post did not amount to an unfair labour practice.
42. The Applicant's claim of unfair labour practice is hereby dismissed.

Commissioner: Luyanda Nkwenkwe Dumisa
Sector/ Industry: Education
261 West Avenue
8h00 to 16h30 - Monday to Friday
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