Case Number: ELRC931-19/20GP
Applicant: SADTU OBO I.S. Padayachee
Respondent: Department of Education: Gauteng
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtual hearing (Zoom)
Award Date: 9 December 2020
Arbitrator: Themba Manganyi
Panellist: Themba Manganyi
Case No.: ELRC931-19/20GP
Date of Hearing: 19 October 2020 & 05 November 2020
Date of Arguments: 12 November 2020
Date of Award: 09 December 2020
In the Arbitration Hearing between
SADTU OBO I.S. PADAYACHEE APPLICANT
GAUTENG DEPARTMENT OF EDUCATION 1ST RESPONDENT
NAPTOSA OBO M. REDDY 2ND RESPONDENT
Applicant’s representative: Mr Solomon More
E-Mail Address: email@example.com
1st Respondent’s representative: Mr Motsiri Hlapolosa
E-Mail Address: firstname.lastname@example.org
2nd Respondent’s representative: Mr Tumi Madika
E-Mail Address: email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award emanating from the arbitration proceedings conducted via Zoom virtual platform under the auspices of the Education Labour Relations Council (“the Council”) on 19 October 2020 and 05 November 2020.
2. Mr Solomon More (“More”), a SADTU Official, represented the Applicant, Ms I.S. Padayachee (“Padayachee”). Mr Motsiri Hlapolosa (“Hlapolosa”), a Labour Relations Officer, represented the 2nd Respondent, Gauteng Department of Education. Mr Tumi Madika (“Modika”), a Naptosa Official, represented the 2nd Respondent, Ms M. Reddy (“Reddy”).
3. The parties submitted bundles of documents into evidence. The Respondent’s bundle was marked Bundle A and the Applicant’s bundle was marked Bundle B. Parties were allowed to call witnesses, cross-examine and re-examine them. At the end of the proceedings, parties agreed that they will submit their closing arguments in writing on or before 12 November 2020. Parties duly complied and the closing arguments have been considered when writing this award. The proceedings were recorded via Zoom and the Council retained the recording thereof.
ISSUES TO BE DECIDED
4. The issue turns on the alleged unfair labour practice (ULP) contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRAA”), as amended, relating to the promotion of the Applicant. I am required to determine whether or not the Respondent subjected the Applicant to an unfair labour practice by not shortlisting her for a post that she applied for.
5. In the event that I find in favour of the Applicant, the Applicant sought that the recruitment process be redone by an independent panel.
6. The Applicant was employed as an Educator since 2009. There was a vacant substantive post at Halfway House Primary School which was advertised in a vacancy circular 03/PL2 – 4 in July 2019 and the Applicant applied for the post. However, she was not shortlisted. Consequently, she was not called for an interview. The Applicant contended that the criteria that was used for shortlisting was not fair. She further contended that based on her qualifications and experience, she was the best candidate for the position.
7. Hlapolosa contended that a fair process was followed in appointing the best candidate in the post. Modika argued that the 2nd Respondent met all the criteria and that she was not part of the recruitment process. She was appointed in the position based on her qualifications, experience and leadership skills.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant and two (2) witnesses testified under oath and their evidence in summary was as follows:
8. The Applicant stated that the criterion that was used for shortlisting candidates was explained in page 9 and 10 of Bundle A. She stated that she has the required qualifications for the position and that the candidate that was appointed in the position did not have the required qualifications. She averred that she had the necessary teaching experience and leadership skills. She testified that she met all the requirements to be shortlisted. However, she was not given a fair opportunity to compete for the position. She stated that the Respondent’s conduct was both procedurally and substantively unfair.
9. Under cross-examination by the 1st Respondent, she confirmed that she has an Honours Degree in History. She contended that the typed minutes of the shortlisting meeting did not reflect what was on the original written minutes relating to the criteria that was to be utilized for shortlisting. She stated that one K. Pillay was shortlisted whilst she did not have the required qualifications. She stated that she acted as a HOD and that she had leadership skills.
10. Under cross-examination by the 2nd Respondent, she stated that she would prove that she was the best candidate by relying on her qualifications and experience as an Educator. She disputed the version that she was not shortlisted because she was not the best candidate. She stated that she taught Social Science for twenty years.
11. Ms Pamela Eager (“Eager”) stated that she knew Padayachee for many years as an Educator and that Padayachee has acted as an HOD
12. Under cross-examination by the 1st Respondent, she confirmed that Padayachee acted as an HOD and that she (Padayachee) was not an HOD.
13. Under cross-examination by the 2nd Respondent, she stated that Padayachee acted as an HOD for one term and that whilst acting as an HOD, Padayachee was responsible for all the duties associated with the HOD role and also her subject. She confirmed that Padayachee shared the HOD duties with the 2nd Respondent (Reddy).
14. Ms Shirley Moodley (“Moodley”) stated she was a Sadtu official and that she was an observer during the shortlisting process for the HOD post. She testified that the CV’s were not scored and that rendered the process unfair. She averred that she believed that the Applicant’s CV was overlooked.
15. Under cross-examination by the 1st Respondent, she confirmed that there was a criterion that the shortlisting panel agreed upon. She disputed the version that when the panel was given the batches of CV they were actually scoring.
16. Under cross-examination by the 2nd Respondent, she stated that scoring of CV’s was imperative and since that was not done; the shortlisting process was not followed.
1st Respondent’s case
17. Mr Leon Botha (“Botha”) testified under oath and stated that he was the Principal at Halfway House Primary School. He stated that he was part of the shortlisting panel and the panel decided on the criteria for shortlisting. He testified that the panel distributed batches of CV’s amongst six panel members and the panel decided that they would look at the qualifications, at least five years’ experience teaching Social Science in primary school and leadership skills. He stated that the panel decided that they would shortlist six candidates. He testified that the Applicant was not shortlisted because she did not have the leadership skills involved in the extra and co-curricular activities in the specific learning area. He stated that the Applicant met only two of the criteria that they have decided upon, but she lacked on the leadership skills.
18. Under cross-examination by the 2nd Respondent, he confirmed that the panel did not score CV’s because they did not see the need as they relied on the criteria that they had set. He confirmed that the panel looked at all the CV’s.
19. Under cross-examination by the Applicant, he stated that his role during the interview process was to give guidance and he stated that he gave guidance throughout this process. He confirmed that he thought that the criteria that was used for shortlisting was fair. He confirmed that the Applicant acted in an HOD position. He confirmed that he saw the Applicant’s application for the post. He stated that he was not aware of other extra-curriculum activities that the Applicant was involved in before his arrival at the school. He stated that the panel were looking at the leadership skills when they shortlisted the candidates.
20. Ms Maropeng Morena (“Morena”) testified under oath and stated that she was the Labour Relations Officer employed by the 1st Respondent since 2012. She stated that the Applicant referred a grievance about her not being shortlisted to the District Grievance Committee (“DGC”). The DGC realized that the Applicant was qualified and they wanted the panel to explain why the Applicant was not shortlisted. She testified that the criteria that was used for the shortlisting of the candidates required candidates to have the relevant qualifications, experience and leadership skills and the Applicant lacked leadership skills. On the issue of scoring, she stated that scoring was not the only criteria for shortlisting.
21. Under cross-examination by the 2nd Respondent, she stated that the DGC comprised of the official from the Department and the two trade unions. However, during the Applicant’s grievance hearing, it was only herself and a Sadtu official. Naptosa was invited to the hearing, but did not attend. The non-attendance of a party does not invalidate the process. She testified that there was a consensus from the DGC to dismiss the Applicant’s grievance since they found that it had no merits.
22. Under cross-examination by the Applicant, she stated that she understood leadership skills to mean that the person in that position must be able to inspire the people that they lead. She stated that the shortlisting panel required a person who participated in extra-curriculum in their learning area. When asked if the Applicant’s CV did not show leadership skills. She stated that the Applicant had a bit of administrative and leadership skills whilst the panel was looking for a candidate who was actively involved in the learning area. She conceded that page 3 of Bundle B at point 10 indicated that the Applicant as an HOD had leadership, administrative and managerial skills. She disputed that the criteria that the panel used to shortlist contradicted the requirements of circular 3 of 2019.
ANALYSIS OF EVIDENCE AND ARGUMENTS
23. This is an arbitration award issued in terms of section 138(7) of the LRA with my brief reasons. All the evidence and the closing arguments as submitted by the parties were considered when writing this award.
24. Section 185 of the LRA states that every employee has the right not to be subjected to unfair labour practice. Section 186 of the LRA goes on further to explain what conduct by the employer constitutes an unfair labour practice. The Applicant’s dispute turns mainly on the 1st Respondent’s failure to shortlist her for the HOD for Social Science post (JE39ED1040). Therefore, the Applicant bears the onus to prove on a balance of probabilities that the 1st Respondent subjected her to an unfair labour practice.
25. It is common cause that the Applicant applied for the HOD position together with the 2nd Respondent and other candidates. It is common cause that the Applicant was not shortlisted for the position. The reason advanced by the 1st Respondent for not shortlisting the Applicant was that she did not meet one of the criteria that the shortlisting panel agreed upon. The Applicant contended that the criterion that the panel used during the shortlisting process was unfair mainly because the panel did not score the CV’s. It was not disputed that the CV’s were not scored. In the same breath, it was not disputed that the panel looked at all the applications that were received. This fact was corroborated by Moodley and Botha. I can therefore conclude that the Applicant’s CV was not overlooked.
26. It was Botha’s evidence that the panel agreed that the candidates that would be shortlisted must have the relevant qualification, five years’ teaching experience and the leadership skills in the extra and co-curricular activities in the learning area. The reason that the Applicant was not shortlisted was because she lacked the leadership skills in the extra and co-curricular activities in the learning area. It was not disputed that the Applicant acted in the HOD position and that the Applicant led and managed the Social Science Club at the school (see page 2 of Bundle B in this regard). In comparison to the 2nd Respondent on leadership skills in the extra and co-curricular activities in the learning area, the 2nd Respondent developed and empowered educators in Professional Leadership Committee in the learning area (see page 21 of Bundle A in this regard). I consider the 2nd Respondent’s leadership skills more appealing than that of the Applicant. Thus, this criterion placed the 2nd Respondent in good stead when compared to the Applicant.
27. Resolution 5 of 1998 at clause 3.6.1 stipulates that the criteria used for shortlisting candidates must be fair, non-discriminatory and in keeping with the Constitution of the country. The contention by the Applicant that the panel did not score the CV’s cannot be the only criterion that is utilized to shortlist candidates. However, the criteria that the panel decides upon must be fair and non-discriminatory. The DGC did not find anything amiss in the process that the panel agreed upon during the shortlisting process. Subsequently, I find that the Applicant was not subjected to any unfair labour practice.
I therefore make the following award:
28. The Applicant did not succeed to discharge her onus of proving that the 1st Respondent had committed an unfair labour practice by not shortlisting her.
29. The Applicant is not entitled to any relief.
Arbitrator: Themba Manganyi