Case Number: PSES177-19/20NC
Province: Northern Cape
Applicant: PSA obo SIBONDANA L
Respondent: 1st Respondent NORTHERN CAPE DEPARTMENT OF EDUCATION, 2nd Respondent MAGOPAZE P.
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 18 November 2020
Arbitrator: Mbulelo Safa
Case Number: PSES177-19/20NC
Commissioner: Mbulelo Safa
Date of Award 18 November 2020
In the ARBITRATION between: -
PSA obo SIBONDANA L
NORTHERN CAPE DEPARTMENT OF EDUCATION
Applicant’s representative: Mr F. Jantjies
Applicant’s Address: 444 Xaba Single, UPINGTON
E-mail Samantha.firstname.lastname@example.org Eugene.email@example.com
1st Respondent’s Representative : Mr P. Muller
1st Respondent’s Address 156 Barkley Road, KIMBERLY, 8300
E-mail firstname.lastname@example.org email@example.com
2nd Respondent’s Representative: Mr P. Magopaze
2nd Respondent’s Address Orange Oerwer Primary School, UPINGTON
DETAILS OF THE HEARING AND REPRESENTATION
1. The Arbitration was held on the 26th October 2020 on the virtual platform called Zoom.
2. The Applicant was represented by Mr Franchois Jantjies from PSA, the First Respondent was represented by Mr Paul Luller and the Second Respondent did not attend and was not represented.
ISSUES TO BE DECIDED
3. To decide whether or not if the decision of the First Respondent not to appoint the Applicant in the vacant post of the HOD at Orange Oewer Primary School was procedurally and substantively unfair and to make an appropriate award in terms of section 193 of the LRA.
BACKGROUND TO THE ISSUE
4. The Applicant is employed by the First Respondent as an educator. She applied for the post of Head of Department(HOD) at Orange Oewer Primary School. She was not shortlisted to the post and was not appointed. The Second Respondent got appointed into the post.
5. Unhappy with the decision of the 1st Respondent not to appoint or promote her the Applicant referred an unfair labour practice dispute to the ELRC.
6. The relief sought by the Applicant was the setting aside of the appointment of the Second Respondent and she Applicant be appointment into the post.
SURVEY OF EVIDENCE AND ARGUMENT
7. The Applicant led oral evidence and submitted one bundle of documents. The 1st Respondent did not lead oral evidence but submitted one bundle of documents.
APPLICANT’S EVIDENCE AND ARGUMENT
8. The Applicant testified that she started to work as an educator on temporary basis in 2013. In January 2015 she got appointed to teach in the Intermediate Phase. In 2017 she was appointed on permanent basis to teach at Foundation Phase. Her qualifications were NPDE and ACE in Education Law and Policy.
9. She testified that she was doing class teaching (teaching all the subjects) in the period from 2015 to 2016 teaching in grade 4. In 2017 she was an English educator for the grades 4 to 6.
10. The School Governing Body appointed her to act as the HOD in the period from 1st April 2019 to 31 December 2019. She received a letter from the First Respondent to stop her acting stint. She said she was stopped from acting because someone else was going to be given a chance to act.
11. She testified that she had the experience and skills in the Intermediate Phase and at some stage she was the Spelling B coach.
12. When she was Acting as the HOD she was appointed subject head for English in the Intermediate Phase. During the period of acting she used to attend cluster meetings and have also attended cluster training for English teachers in Intermediate Phase. In the meetings the educators were trained on how to teach the subject.
13. She testified that she applied for the post of the HOD because she acted in it for nine months and there were no complaints in the way she did her work. With the training she believed she had the experience for the post. She attended meetings of the management and was delegated the functions of the HOD.
14. She felt she was unfairly treated by the First Respondent who told her that she did not meet the requirements. The explanation by the First Respondent was vague. She referred to page 59 of the bundle and pointed at the subject requirements for the post where the subjects English and Social Science were identified. She stated that she had the experience to teach the subjects.
15. She referred to the advert where the requirements for the post are captured. She stated that she was meeting all the requirements.
16. She further referred to the letter addressed to her written by the First Respondent. She stated that in the letter there is nothing that refers to her qualifications. The letter only referred to the South African Schools Act.
RESPONDENT’S EVIDENCE AND ARGUMENT
17. The Respondents did not lead evidence.
ANALYSIS OF EVIDENCE AND ARGUMENT
18. This is an unfair labour practice dispute in terms of section 186(2) of the Labour Relations Act.
19. The Labour Court in Buffalo City Public FET College v CCMA and Others (P 372/12)  ZALCPE 18 held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee(Applicant) to prove that he/she is a suitable and better candidate for the position in question.
20. In this dispute the Applicant bears an onus to prove that she was the best candidate for the post.
21. In her evidence the Applicant testified that she was aggrieved by the fact that she was not shortlisted for the post. She testified that she met the minimum requirements to be shortlisted for the post since she had been an educator at the Intermediate Phase since January 2015.
22. In terms of clause B.3.2.1 of PAM the minimum requirements for the post of Departmental Head are a recognized three or four year teaching qualification, registration with SACE and three years of actual teaching experience. The Applicant testified that she met all these requirements and therefore qualified to be shortlisted and ultimately appointed.
23. The defence of the First Respondent in arguments was that the Diploma(NPDE) the Applicant had was for teaching in the Foundation Phase and not in the Intermediate Phase where the post was advertised.
24. The First Respondent erred in disqualifying the Applicant from being shortlisted for the reasons they stated because she met the minimum requirements for being shortlisted and taught at the relevant phase since 2015. She had the three year teaching qualification, had more than three years teaching experience and there was no dispute that she is registered with SACE.
25. In terms of clause 48 of ELRC Collective Agreement 3 of 2016 the Applicant “needs to show that, but for the irregularity or unfairness, she would have been appointed to the post”.
26. Clause 49 of the same collective agreement states that the Applicant needs to show that not only was she better qualified and suited for the post than the appointed candidate but that she was the best candidate of all the applicants who applied for the post.
27. In this dispute the Applicant did not do any comparison between herself, the Second Respondent and other candidates. As the bearer of onus of proof it was the Applicant who had the responsibility to do this.
28. Without anything to compare with I am unable to make a finding of whether or not the Applicant was better than Second Respondent or all the candidates who applied.
29. To be able to make that decision I needed to see the profile of each candidate for the post and compare that to the profile of the Applicant. Without the information about the other candidates I am also unable to make a finding whether if it was not for the unfairness of the Respondent the Applicant would have been shortlisted.
30. No evidence was led that there were defects in the procedure use in the recruitment process.
31. Clause 55 of ELRC Collective Agreement 3 of 2016 states that as long as the decision of the employer can be rationally justified mistakes in the process of evaluation do not constitute unfairness that justifies interference with the decision to appoint.
32. It is my finding that the Applicant did not succeed in proving her case and thus there is no justification in interfering with the managerial prerogative of the First Respondent to appoint the Second Respondent.
In the circumstances, I make the following award;
33. The process of the appointment of the Second Respondent as the Departmental Head of Orange Oewer Primary School was procedurally and substantively fair.
34. The application to set aside the appointment of the Second Respondent and appoint the Applicant fails.
35. ELRC must close the file.
Mbulelo Safa: PANELIST