Case Number: PSES 392-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Lorraine Barnard
Respondent: Department of Education: Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Virtual hearing (Zoom)
Award Date: 10 December 2020
Arbitrator: Catherine Willows
Case Number: PSES 392-19/20EC
Commissioner: Catherine Willows
Date of Award: 10 December 2020
In the matter between
NAPTOSA obo LORRAINE BARNARD
EASTERN CAPE DEPARTMENT OF EDUCATION
THE SCHOOL GOVERNING BODY – CAMBRIDGE PRIMARY SCHOOL
MRS LISA DE LA CORNILLERE
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was heard on the 4th December 2020 via Zoom Virtual Conferencing.
2. It came before the ELRC in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).
3. Advocate GD Saayman of NAPTOSA appeared for the Applicant, Mrs Lorraine Barnard. The 1st Respondent was represented by Mr Lwando Jevu, the Employee Relations Officer. The 2nd Respdonent, the School Governing Board of Cambridge Primary was not present. The 3rd Respondent, Mrs Lisa De La Cornillere, was represented by Mrs Venita Van Wyk of SAOU. Interpretation services were not required.
4. Pre-Arbitration minutes were compiled by the parties on 3 December 2020 and submitted.
5. Both the Applicant and 1st Respondent submitted bundles of documentation to be utilised as documentary evidence, the evidence of which was accepted unless specifically placed in dispute.
6. The proceedings were digitally recorded, and hand-written notes are on file.
7. The Applicant, 1st Respondent and 3rd Respondent submitted closing arguments on 8 December 2020, and such have been considered in preparation of this Award.
8. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
ISSUE TO BE DECIDED
9. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of Deputy-Principal of Cambridge Primary School, East London Volume 2-2019/063 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
10. In terms of the pre-arbitration minutes filed by the parties on 3 December 2020, the issues that may be considered as common cause: The Applicant is a Post Level 2 Educator at Cambridge Primary School, East London. She applied for the position of PL3 (Deputy-Principal of Cambridge Primary School) but was not shortlisted despite satisfying the minimum criteria for the position. The 2nd Respondent was shortlisted, interviewed and subsequently appointed to the post commencing on 9 July 2019. At the time of appointment, the 3rd Respondent was not a State employee. There were three (3) post numbers advertised for the position but none were withdrawn.
11. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 3rd Respondent to the post of Deputy-Principal, Cambridge Primary School, East London. In particular, the Applicant is claiming that the School Governing Body (hereafter referred to as the “SGB”) was unfair in not short listing her for the position and that their decision was premised upon bias.
12. The Applicant, in terms of relief, is requesting the appointment to be set aside and for the process to be started afresh and for compensation in the amount of 12 months.
SURVEY OF EVIDENCE AND ARGUMENT
13. The Applicant submitted under oath that initially the Post of Deputy-Principal for Cambridge Primary School was advertised under three (3) bulletins, namely Volume 2/2019/400; Volume 2/2019/063 and Volume 2/2019/411. None of these bulletins were withdrawn which led to confusion regarding the post.
14. Nevertheless, the Applicant stated that she completed an Application and applied for the post citing Volume 2/2019/063. She completed the EDP01 Form but when she was not shortlisted, she required a response but was informed that such was confidential. She believed that in not short listing her, this proves bias as the 2nd Respondent is “friendly” with the Chairperson of the Interview Panel, Mrs Michelle Rothman. She stated “they were each on the panel to select each other”. She furthermore stated that she was satisfied that she completed the Application form, met the minimum requirements and should have been shortlisted.
15. Under cross-examination, the Applicant was directed to her EDP01 Form whereby it was asked whether she could see that the Post No. “063” had no. 6 written in bold, suggesting that it had been scratched out and amended. The Applicant stated that she did not recognise such error, she was sure she did not make such error as she had filled out the Form twice prior because she had made mistakes. She was particular in this regard and that anyone could have made this adjustment after she had submitted the Form.
16. In addition, the Applicant was directed to paragraph 19 of the EDP01 Form whereby it requests information relating to the Highest REQV Level. The Applicant conceded that she did not fill this part in and had left it blank. Under re-examination, the Applicant submitted “I didn’t do the REQV level but I filled in everything else”.
Mr Ethan Anthony
17. Mr Anthony submitted under oath that he is a Post Level 1 Educator at St Anne’s Primary School in East London. He was the observer for NAPTOSA during the short listing process. During the short listing process, the sifting of Applications evidenced a number of applications that were incomplete or had errors and such were disqualified. The process was then halted to seek guidance from the 1st Respondent as to a re-advertisement of the Post.
18. Mr Anthony stated that after this initial meeting, he did not attend any further meetings with regards to the Post in dispute. He stated that they accepted all Applications for the three Post numbers advertised as none of them had been withdrawn. On the Applicant’s Application, there was a problem with the no. “6” but he did not regard this as being a problem and believed that the Application was completed in full.
19. In closing, the Applicant submitted that she viewed the process embarked upon by the selection panel as unfair. It prejudiced her as the criteria was unfair and she was treated arbitrarily and irrationally. It was furthermore probable that an overly formalistic approach was adopted and as a result, the 2nd Respondent’s conduct was arbitrary and inconsistent.
20. In terms of relief, the Applicant prays for compensation for the injuria of being treated unfairly, for the value of twelve (12) months.
21. The Respondent called Mrs Michelle Rothman (Chairperson of SGB Panel) and Mrs Estelle Swartz (Senior Education Specialist) as witnesses.
22. Mrs Rothman stated that she was nominated as the Chairperson of the Interview Panel. At the sifting process on 25 April 2019, it was discussed what was in the Bulletin and all panel members checked all the Applications.
23. Seventeen (17) Applications were received but only ten Applicant’s as some applications were duplicates. In the ratification minutes it was recorded that in the sifting process, issues were found with the EDP01 Forms. After disqualifiying the Applications with errors on the EDP01 Forms, only two Applicants have remained. The panel was unsure if the process should continue with only two applicants or if the Post was to be re-advertised. It was decided that guidance was to be obtained from the 1st Respondent before the process continued.
24. Mrs Rothman stated that she met with Mrs Swartz and was advised that re-advertisement was not required, and that the process must continue even with one Applicant. Mrs Rothman stated that they reconvened the process and interviews took place on 9 May 2019 and the 3rd Respondent was recommended to the Position.
25. Mrs Rothman stated that she does not have a “friendly” relationship with the 3rd Respondent, but more of a professional one. They discuss Foundation Phase issues and she remains a colleague but not a friend.
26. With regards to the Applicant, Mrs Rothman stated that the Applicant’s EDP01 Form had an error on it whereby the no. 6 was scratched out. In training, they were instructed that if there was an error on the EDP01 form, it would need to be initialled. In addition, the Applicant did not complete the provision relating to REQV level.
27. Upon such basis, the Applicant’s application was disqualified. All applications with errors were set aside except that of Mrs Naude. Mrs Naude had completed the Application and EDP01 Form correctly but her certificates and qualifications were certified by an Attorney. All certificates were certified but one of the certificates was not dated as to date of certification. This was regarded as not being an “error” and upon advises obtained, Mrs Naude’s application was considered.
28. In terms of the 3rd Respondent, Mrs Rothman stated the Applicant had submitted three Applications, with all three Post No’s cited. Two of the three applications were set aside because of errors and the third one was correct and accepted.
29. Under cross-examination, Mrs Rothman confirmed that she engaged Mrs Swartz in a meeting (with Mrs Botyi – a Union representative present) to obtain guidance from the process and whether the Post would require to be re-advertised. She was advised that the Post would not have to be re-advertised, that the process would continue with the Applicant’s and that the Application of Mrs Naude could be accepted, despite one of the certificate’s not being dated.
30. Mrs Estelle Swartz testified under oath that she is a Senior Education Specialist and assist with management and governance in all schools. She was contacted by Mrs Rothman, who was seeking clarity on the process to which Mrs Swartz stated that she advised her that even if there was only one applicant, the process was to continue.
31. She frequently guides schools when her assistance is required and in order to avoid any disputes, for the correct process to be followed. Under cross-examination, Mrs Swartz confirmed that the specific requirements for the position are set out in the bulletin and that the rest of the criteria are stipulated by the SGB if in line with the Policy. Mrs Swartz furthermore confirmed that the Application of the Applicant was incomplete with an error, which was not initialled, and upon such basis she was correctly disqualified from the process.
32. In closing, the 1st Respondent’s representative submitted that the Applicant agreed that she did not complete her EDP01 Form. A failure to do so, would have been sufficient for her not to be shortlisted.
33. It was furthermore submitted that on the basis of the evidence led, ELRC Resolution 5 of 1998 clause 2.1.2 and Personnel Administrative Measures (PAM) Clause B 188.8.131.52 were adhered to in the appointment of the 3rd Respondent. No exceptions were made for all the applicants and subsequently three candidates were shortlisted substantively and procedurally fair. The three applicants were shortlisted, invited to interviews and the incumbent was appointed correctly.
34. The non-shortlisting of the applicant as alleged complied with requirements of the Resolution 5 of 1998 and Personnel Administrative Measures ( PAM) document. Clause 2.1.2 and Clause B 184.108.40.206 and as such, the SGB and Staff were correct to not shortlist the applicant.
35. It was therefore requested that the claim of the Applicant be dismissed.
36. The 3rd Respondent submitted a closing argument and submitted that she had submitted three separate applications for all three posts advertised. Mistakes were made on two of her applications and these were disqualified, with the 3rd being correct and accepted. She was invited for an interview on 9 May 2019 with two other Applicants and was subsequently recommended for the position and appointed from 2 July 2019.
37. It was submitted that in the advertisement to the post, guidelines and instructions were attached to the Bulletin. One of such instructions was that the EDP01 Form was to be completed in full. The Applicant confirmed that she did not complete the EDP01 Form by completing her REQV and NQF level and agreed that this was to be seen as incomplete. This would have been sufficient reason for her to be disqualified.
38. It was therefore submitted by the 3rd Respondent that the claim of the Applicant be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
39. Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any unfair act or omission that arises between an employer and an employee involving-
a. Unfair conduct by the employer relating to the promotion....”
40. The test is therefore whether the conduct or omission of the employer was unfair when coming to the decision to promote a particular employee.
41. In determining whether the employer was fair or not the following have to be taken into account: -
• Whether the failure or refusal to promote was caused by unacceptable irrelevant or invidious considerations on the part of the employer or-
• Whether the employer’s decision was arbitrary, or capricious, or unfair or
• Whether the employers failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory
• Whether there were insubstantial reasons for the employer’s decision not to promote.
• Whether the employer’s decision not to promote was based on a wrong principle.
• Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).
42. It is trite that the onus of proof in matters relating to unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.
43. The Applicant in this dispute bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion in relation to her. She needs to prove that the dispute referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and that she is entitled to the relief sought.
44. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.
45. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
46. Expressed somewhat differently, the employee must demonstrate that she was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. She must show that on the criteria used to select another person above her, she stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H).
47. An employee who refers a promotion dispute must do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33).
48. The issue raised by the Applicant in this dispute is based upon two legs. The first is that the perceived error on the EDP01 Form was not legitimate, and that the Chairperson of the Interview Panel, Mrs Rothman, showed biasness in that other Applicant’s were shortlisted who also had errors.
49. The submission by Mrs Naude was accepted by the Panel on the basis that one of her Certificate of Qualifications, being certified by an Attorney, was not dated. Upon an assessment of the submissions of the Applicant, I cannot arrive at a conclusion that I can equate such to the error on the EDP01 Form. One certificate that is not dated (but certified) cannot be equated to the failure of correct completion of the EDP01 Form. Such submission on the part of the Applicant is without merit.
50. Furthermore, I was satisfied on the basis of documentary evidence led by the Respondent that the 3rd Respondent had submitted three applications, all citing the various Post Numbers. Two of such applications were disqualified because of errors but the third was accepted on the basis of completion and considered.
51. Therefore there is no basis to arrive at a conclusion that the Applicant’s for the post were treated differently for the process.
52. The main contention of the Applicant was that the perceived error on the EDP01 Form was not done by her or sufficiently significant to disqualify her from the process. Delving into whether or not this was a legitimate or gross error becomes moot as the Applicant, in her own admission, failed to complete the provision relating to REQV qualifications. This omission, on its own, would have been sufficient to disqualify her.
53. It is trite that Applicant’s are required to complete the documentation in full. A failure to do so, runs the risk of being disqualified. The Applicant did not complete the EDP01 Form in full, and was subsequently disqualified from the process. This was not motivated by any mala fides or biasness against her, rather a commitment to a fair and transparent process.
54. I am required to review the decision of the Respondent in not short listing the Applicant for the Post to which she applied.
55. In Noonan v Safety and Sectoral Bargaining Council and Others  33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
56. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
57. The proverbial question is whether or not during the promotion process the panel transgressed any of the procedures that are prescribed in terms of the advertisement or in terms of PAM.
58. Applicant complained that she should have been short-listed as she met the minimum requirements for the Post. However, before one is short-listed, one has to comply with the requirements including the submission of a duly completed and signed EDP01 form. Had the form been correctly completed, inclusive of REQV and NQF levels, then Applicant ought to have been short-listed and called to an interview. Her form was incomplete and omitted such information, therefore she failed to meet the necessary criteria set out in the advertisement and the resolution of the ELRC, thereby excluding herself.
59. Her omission has been fatal to the application. This is most unfortunate but no blame can be placed on the 1st and 2nd Respondent. There are requirements and criteria for every application and the failure to comply therewith is fatal.
60. I cannot place any blame on the 1st and 2nd Respondent as far as it relates to them executing their duties in terms of the prescripts.
61. Despite my sympathies for the Applicant, she was unable to proffer substantial credible evidence to support the claim that the process was flawed and amounted to an unfair labour practice perpetuated against her.
62. I cannot negate the incidence of onus that rests upon the Applicant that the decision not to appoint her was on the basis of some unacceptable, irrelevant or invidious comparison.
63. It follows that in my assessment of the evidence and explanations given by the parties, that sufficient evidence was not tendered in order to support a version that the actions of the Respondent were unfair and grossly unreasonable.
64. The applicant has not succeeded in discharging the onus to prove his claim of unfair labour practice based on promotion by the Respondent.
65. I find that the 1st Respondent, Department of Education: Eastern Cape did not commit an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA by not short listing the Applicant, Lorraine Barnard.
66. In light of the above I make the following award.
a) The Applicant’s application fails.
b) No order as to costs is made.