Case Number: PSES679-18/19WC
Province: Western Cape
Applicant: 1st Applicant P MAZULA and 2nd Applicant P PAMA
Respondent: 1st Respondent DEPARTMENT OF EDUCATION – WESTERN CAPE, 2nd Respondent M H SIXHOLO
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education - Western Cape District Office in Vredenburg.
Award Date: 20 January 2021
Arbitrator: Jacques Buitendag
Commissioner: Jacques Buitendag
Case No.: PSES679-18/19WC
Date of Award: 20 January 2021
In the Arbitration between:
DEPARTMENT OF EDUCATION – WESTERN CAPE
M H SIXHOLO
Union / Applicant’s representative: E Simons
Telephone: 021 946 1251
Telefax: 021 946 2710
1st Respondent’s representative: F H Scholtz
Telephone: 021 467 2387
Telefax: 021 425 8612
2nd Respondent’s representative: Z Parker
Telephone: 073 895 8177
Email: firstname.lastname@example.org , email@example.com
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration hearing under the auspices of the Education Labour Relations Council (ELRC) took place on 20 September- and 27 November 2019; 24 February; -25 February and 3 December 2020 at the premises of the Department of Education - Western Cape District Office in Vredenburg. The proceedings were digitally recorded.
2. Mr. S Meyer, and later Mr. E van Simons of SimonsVanStaden attorneys, represented the 1st and 2nd applicants, Mr. P Mazula and Ms. P Pama. Mr. F Scholtz represented the 1st respondent, the Department of Education – Western Cape.
3. The 2nd respondent, Mr. H Sixholo, was joined because of the initial relief that the applicants were seeking. The 2nd respondent was represented by Mr. K Lasker, and later by Mr. Z Parker of Parker attorneys.
4. Mr. Simons and Mr. Scholtz filed heads of argument on 10 December 2020. The 2nd respondent did not file heads of argument. I consider 10 December 2020 being the last day of the arbitration.
THE ISSUE IN DISPUTE
5. I must determine whether the conduct of the respondent constitutes an unfair labour practice in relation to promotion and if so, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE
6. The applicants are employed by the 1st respondent as Educators in the West Coast Region. They applied for the vacant Principal post at Middelpos Primary which was advertised as Post No 1691 in Vacancy List 1/2016.
7. The applicants, along with the 2nd respondent and two other candidates, were shortlisted and interviewed by the School Governing Body (SGB) on 29 November 2017. The 1st applicant achieved a score of 32% and the 2nd applicant achieved a score of 35% at the conclusion of the interview process. The 2nd respondent achieved a score of 86%. The SGB recommended the 2nd respondent for appointment with the 2nd applicant being the SGB’s 2nd choice candidate. The 1st applicant was not recommended for appointment.
8. More than 9 months later, on 11 September 2018, Mr. Avril Daniels, a Circuit Manager for the West Coast District, wrote to the applicants informing them that the District Office was informed by the Directorate Recruitment and Selection that the SGB must redo the nomination process from the interview stage. Mr. Daniels indicated in the letter to the applicants that the SGB is of the opinion that an interview with the candidates shortlisted, will be a determining factor to nominate the best candidate. The applicants and 2nd respondent were invited to interviews scheduled for 19 September 2018. The interviews did not take place.
9. On 16 October 2018, the Head of Education appointed the 2nd respondent as the Principal of Middelpos Primary with effect from 1 January 2019. At the time of the appointment of the 2nd respondent, the 1st applicant earned R28 526, 25 and the 2nd applicant earned R26 651.72 per annum.
10. The applicants referred individual unfair labour practice disputes relating to promotion to the ELRC. In a ruling dated 20 September 2019 the disputes were consolidated.
11. The applicants claim that the 1st respondent committed an unfair labour practice in relation to promotion. The applicants initially prayed for the appointment of the 2nd respondent to be set aside and for the appointment process to be redone. During the arbitration the applicants however changed the relief sought to compensation only. The 1st respondent denies that it has committed an unfair labour practice.
SUMMARY OF EVIDENCE AND ARGUMENT
12. The applicants testified and called three further witness. The 1st respondent called three witnesses. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.
The applicants evidence
13. Ms. P Pama testified under oath. Ms. Pama gave an overview of her qualifications and experience and testified that she thought her interview with the SGB on 29 November 2017 went well.
14. She explained that Mr. Daniels called her in September 2018 and informed her that the interview process had to be redone because there was an irregularity in the initial process. The interviews were initially scheduled for 20 September 2018 but because the SGB chairperson had a bereavement in her family, the interviews were rescheduled for 19 September 2018.
15. Ms. Pama testified that she went to the Middelpos Primary on 19 September 2018 to attend the interview. Neither the SGB nor Mr. Daniels were at the school. She drove to the Vredenburg District Office but could not find Mr. Daniels. The following day she got hold of Mr. Daniels. He informed her that the interviews will be rescheduled. Ms. Pama testified that whilst she waited to be informed of the rescheduled date, she heard that the 2nd respondent has been appointed.
16. Ms. Pama referred to a letter dated 23 October 2018 that Mr. Daniels addressed to Ms. Memani, the chairperson of the Middelpos Primary SGB. In the letter Mr. Daniels informed the SGB that “the WCED has made a final decision based on the nomination submitted by the SGB serving during the initial nomination process and that the WCED withdraw the instruction on the redo of the nomination process from the interview phase.” He further informed the SGB that the 2nd respondent has been appointed with effect from 1 January 2019.
17. Ms. Pama conceded that she has no proof that she was the best candidate during the 1st round of interviews but she considers the process followed by the 1st respondent as unfair. She said that she is still waiting to be interviewed for the post. She believes that the scores allocated during the 1st round of interviews are not a true reflection of how the candidates performed and that there was favoritism.
18. Ms. M Memani testified under oath. She was the SGB chairperson of Middelpos Primary during 2018. The 1st round of interviews held in 2017 was conducted by the previous SGB.
19. Ms. Memani testified that during a meeting held on 20 August 2018 Mr. Daniels explained to the SGB that Mr. Horne, of the Directorate Recruitment and Selection, informed him that the previous SGB should have nominated three candidates instead of two and that the current SGB must decide whether to redo the interviews. The SGB then decided to redo the interviews. The interviews were scheduled for 19 September 2018. Members of the previous SGB came to the school on this day and after Mr. Daniels spoke to them, he informed the SGB that the interviews will not take place and will be rescheduled. The SGB then received the letter from Mr. Daniels dated 23 October 2018 that the 2nd respondent was appointed without the interviews being rescheduled.
20. Mr. K Ngetu testified under oath. Mr. Ngetu was a member of the SGB during 2017 and part of the panel that interviewed candidates for the Principal post. He testified that no member of the SGB unfairly influenced the interview process and that the SGB recommended the 2nd respondent as its preferred candidate for appointment.
21. Mr. P Mazula testified under oath. Mr. Mazula testified that he acted as Principal of Middelpos Primary for 2 years. Prior to the interviews held on 29 November 2017, he received a sms in which it was purported that he has a criminal record. He was upset about it and showed the sms to Mr. Daniels. He believes that he was scored to low during the interview.
22. Mr. Mazula testified that he was informed that the interviews will be redone. The interviews were scheduled for 19 September 2018. On this day Mr. Daniels informed him that the interviews will be rescheduled. While he waited for the rescheduling of the interviews, he received the news from Mr. Daniels that the 2nd respondent has been appointment.
23. Ms. N Tyakume testified under oath. She was the chairperson of the SGB in 2017. Ms. Tyakume said that she supported the 1st applicant. She cannot recall the scores that she has allocated to the individual candidates. Ms. Tyakume confirmed that the 2nd respondent did well during the interviews and she scored him higher than the applicants. She acknowledged that she has signed the minutes of the meeting confirming the scores allocated to the candidates by the interview panel.
The respondent’s evidence
24. Mr. R Horne testified under oath. He is employed as a Senior Personnel Practitioner in the Directorate Recruitment and Selection. The Directorate Recruitment and Selection oversee the recruitment and selection process to ensure that there is compliance with the agreed upon procedures and submits a report with recommendation to the HOD prior to appointment.
25. In terms of par 3.5 of ELRC Resolution 5 of 1998 the SGB must give interested parties 5 working days’ notice of the interviews. Mr. Horne submitted that he discovered that adequate notice of the interviews was not given to the candidates and that he arranged for the candidates be re-interviewed by the SGB.
26. On 7 September 2018 he drafted a report about the filling of the Principal Post at Middlepos Primary to the HOD (bundle B 83-84). In the report he referred to the fact that the candidates received 2 working days instead of 5 working days’ notice of the interviews. The recommendation was for the HOD to appoint the 2nd respondent.
27. Mr. Horne testified that in his opinion the process was unfair and that is why he arranged for the interview process to be redone.
28. On 11 October 2018 the HOD approved the appointment based on his recommendation. Mr. Horne confirmed that when the HOD approved the appointment, the HOD was unaware that the candidates were informed that the selection process will be redone from the interview stage.
29. Mr. A Daniels testified under oath. He is a Circuit Manager for the West Coast District. Mr. Daniels explained his role in the selection process for the Principal post as Middelpos Primary and testified that he agreed with the recommendations of the SGB following the 2017 interviews.
30. Mr. Daniels confirm that he received instruction from Mr. Horne that the SGB must repeat the selection process from the interview stage because the candidates did not receive 5 working days’ notice of the scheduled interviews. He informed the SGB and thereafter wrote to the candidates informing them that the interviews will be redone. The interviews were scheduled for 19 September 2018. On this day, members of the 2017 SGB arrived at the school. They were not satisfied about the process. Mr. Daniels testified that he considered that the situation may become dangerous and informed his District Manager, who then decided that the process must be stopped.
31. On 19 October 2018 he received a letter from the 1st respondent that the 2nd respondent has been appointed as Principal with effect from 1 January 2019.
32. The written heads of argument are on record. I do not find it necessary to repeat it here in full. I have taken it into account.
33. In short, Mr. Simons argued that the respondent has not complied with its procedures by giving the applicants less than 5 working days’ notice of the 1st round of interviews. The applicants have further been advised by Mr. Daniels that there were certain irregularities with the 1st round of interviews and that the process will be redone and they expected to be interviewed. When the interviews were not held on 19 September 2018 Mr. Daniels informed the applicants that the interviews will be rescheduled. This was not done and Mr. Horne confirmed under cross-examination that the cancellation amounted to unfair conduct on the part of the 1st respondent. The 1st respondent has accordingly committed an unfair labour practice and the applicants are seeking maximum compensation.
34. Mr. Scholtz referred to section 20 of the South African Schools Act, 84 of 1996; section 6.3 of the Employment of Educators Act, 76 of 1998 and argued that the applicants were subjected to a fair interview process on 29 November 2017 notwithstanding receiving 4 working days’ notice instead of the 5 working days’ notice as provided for in Resolution 5 of 1998 and that the HOD, who has the authority to appoint, has appointed the SGB’s recommended candidate. Mr. Scholtz further argued the applicants did not prove that the 1st respondent has acted unfairly.
ANALYSES OF EVIDENCE AND ARGUMENTS
35. Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended, defines an unfair labour practise any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to promotion. The onus is on the Applicant to prove unfair conduct on the part of the Respondent (Ethekwini Municipality vs SA Local Governing Bargaining Council & Others  JOL 23625 (LC)).
36. I will begin by briefly setting out the principals to should be taken into account when dealing with promotion disputes.
37. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court amply sets out the governing law on promotional disputes and goes on providing the following principles to determine unfair conduct relating to promotions:
• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that 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. See also PSA obo Department of Home Affairs (1999) 6 BLLR 577 (CCMA) where it was held that “...it must be stated that an employer cannot be said to have committed an unfair labour practice simply because it makes an unwise choice of candidate…”
38. In SARS v SSSBC & Others (2010 P54-09 (LC) Basson, J held as follows:
• the decision not to promote should be exercised in a manner that does not constitute an unfair labour practice;
• the definition of an unfair labour practice refers to any unfair act or omission that arises between an employer/employee involving unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA ’95. This definition has been interpreted by the LAC in Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion;
• the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promote is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion;
• the role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Contra: see Minister of Safety & Security v SSSBC & Others (2009) 18 LC 1.15.52 where it was held that an employer does not per se have an unfettered discretion when deciding whom to promote/the employer is not shielded from blatant forms of unfair labour practices.
39. In City of Tswane Metropolitan Council of South Africa v South African Local Government Bargaining Council  12 BLLLR 1176 (LC) the judge referred with approval to the two-stage approach outlined in Ndlovu v CCMA and Others (2000) 21 ILJ 1653 (LC) to determine if the failure to promote an employee was unfair, namely, that:
 ...it can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.
 the next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to be that no question of unfairness can arise.
40. Having the abovementioned principals in mind, I will now evaluate the applicants’ case. The conduct of an employer may be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for the appointing an employee whereas procedural unfairness relates to an unfair process applied by the employer during the course of the recruitment and selection process.
41. To prove substantive unfairness that would entitle an employee substantive relief such as appointment to the post or protected promotion, the employee must establish a causal connection between the irregularity or unfairness and the failure to promote. To do that the employee needs to show that, but for the irregularity or unfairness, he or she would have been appointed to the post (see for example National Commissioner of the SA Police Service v Safety and Security Bargaining & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC para 24; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister for Safety and Security & others v Jansen NO (2004) ILJ 708 para 27l KwaDukuza Municipality v SALGBC  11 BLLR 1057 (LC).
42. In spite of the applicant’s subjective views of alleged favouritism and being scored to low, there is no evidence that the applicants and the 2nd respondent were treated differently on the day of the interviews held in 2017 or that the 2nd respondent has not outperformed the applicants during the interviews. There is no evidence that the applicants were prejudiced during these interviews because they received less than 5 working days’ notice of the scheduled interviews. To put is differently, there is no evidence that one of the applicants would have been appointment if it was that he or she would have received 5 working days’ notice of the interviews. In fact, the 2nd applicant testified that she thought that she did well during the interviews. Moreover, is was placed in dispute that the 2nd respondent has the necessary qualifications, experience and attributes that is required for a Principal’s position.
43. The authority to appoint lies with the 1st respondent’s HOD and the HOD has a discretion to appoint any of the nominated candidates. The HOD must act reasonably in making an appointment and, if the decision arrived at by the HOD is reasonable, then it must stand and cannot be interfered with by a court of arbitrator (Head, Western Cape Education Department and others v Governing Body, Point High School and others (2008) (5) SA 18 (SCA). The applicants had a fair opportunity to compete for the post during the 1st round of interviews and I am not persuaded that the discretion exercised by the HOD to appoint the 2nd respondent based on the performance during the 1st round of interviews and the recommendations of the then SGB amounts to substantive unfairness.
44. In as far as procedural unfairness is concerned, the recruitment and selection process of educators are contained in the Employment of Educators Act, the Personnel Administrative Measures and Resolution 5 of 1998. The 1st respondent must comply with the procedures contained therein. In casu the 1st respondent gave the applicants 2 working days’ notice of the interviews which were scheduled for 29 November 2017 instead of the 5 days’ notice that is required in terms of section 3.3(e) of the Personnel Administrative Measures and Resolution 5 of 1998. In terms of paragraph 3.4(a) of the Personnel Administrative Measures the employing department must make the final decision subject to “i) satisfying itself that agreed upon procedures were followed; and that ii) that the decision is in compliance with the Employment of Educators Act, the South African Schools Act, 1996 and the Labour Relations Act, 1995. The Directorate Recruitment and Selection is to ensure the agreed upon procedures were followed.
45. The Directorate Recruitment and Selection clearly regarded the non-compliance with the 5 working day rule to be material because Mr. Horne informed Mr. Daniels that the procedures were not complied with and that the process had to be redone from the interview sage. Astonishingly, and notwithstanding the instruction by the Directorate Recruitment and Selection that the process must be redone, the Directorate Recruitment and Selection advised the HOD to appoint the 2nd respondent based on the 1st round of interviews and the recommendations of the SGB. It appears from Mr. Horne’s memorandum to the HOD (bundle B pages 83, 83A and 84) that the HOD was indeed informed that the short listed candidates received 2 working days’ notice instead of the required 5 working days but he omitted to inform the HOD that the District Office has been notified that the selection process must be redone. There is also no evidence that the Directorate Recruitment and Section informed the HOD, prior to his approval of the appointment of the 2nd respondent on 16 October 2018, that the SGB and the short listed candidates have in fact been informed that the selection process will be redone from the interview stage and that the candidates were invited for the interviews.
46. The evidence shows that Mr. Daniels notified the SGB and the candidates, as per the instructions of the Directorate Recruitment and Selection, that the selection process will be redone. He made it clear in his letter to the applicants that the “SGB is from opinion that an interview with the candidates shortlisted, will be a determining factor to nominate the best candidate.” A new date for the interviews was then determined. When the interview did not take place on 19 September 2018 Mr. Daniels advised the SGB and applicants that the interviews will be rescheduled. There was no indication given to the applicants at the time that the 1st respondent will now consider the outcome of the 1st round of interviews. I find that the notification to the applicants and the subsequent invitation to be interviewed has created a legitimate expectation with the applicants that the process will be redone.
47. In my determination the first round of interviews were procedurally unfair because the candidates were not given the required 5 working days’ notice of the interviews. The 1st respondent has also acted unfairly towards the applicants by reneging on their commitment for the selection process to be redone from the interview stage. For the above reasons I find that the applicants have discharge its onus in proving an unfair labour practice relating to promotion.
48. The applicants do not seek for the appointment of the 2nd respondent to be set aside. They seek compensation only. In my determination the applicants’ entitlement to compensation is non-patrimonial in nature. Compensation aimed at compensating an employee for non-patrimonial loss, means that no actual financial loss was suffered but there where damage caused to the employee’s personal interests. The courts have always been conservative when awarding solatium for non-patrimonial loss (see for example SAA v V  8 BLLR 748 (LAC); Minister for Justice and Constitutional Development v Tshishonga  9 BLLR 862). Case studies involving compensation serve as useful guidelines. In terms of the ELRC Guidelines: Promotions Arbitrations, awards of compensation intended as a solatium for serious infringements range from R5000.00 to R20 000.00. Where employees have been discriminated against unfairly during a promotion process the amount generally does not exceed R50 000.00 (in casu, the applicants were not discriminated against). In cases that cannot be regarded as serious, but nevertheless not trivial, compensation of up to R5000.00 can be considered. As I have explained above, I am of the view that that the applicants were not severely prejudiced during the initial process because they did not receive the required 5 working days’ notice of the interviews. Furthermore, there is no evidence that the either of the applicants would have been appointed had it not been for the short notice of the interviews.
49. For the procedural unfairness, I find that awarding R5000.00 as a solatium to each of the applicants are fair and equitable.
50. The 1st respondent, the Department of Education – Western Cape has committed an unfair labour practice relating to promotion in this instance.
51. I order the 1st respondent, the Department of Education – Western Cape, to pay R5000.00 to each of the applicants, being Mr. P Mazula and Ms. P Pama, as a solatium for the unfair labour practice.
52. The respondent must pay the compensation amount to each of the applicants before close of business on 31 January 2021.
53. Interest will accrue on the compensation amount from 1 February 2021 in accordance with section 143(2) of the LRA.
ELRC Panellist: Jacques Buitendag