Panellist/s: Michael Marawu
Case No.: PSES 838-18/19WC
Date of Award: 29-March-2021
In the ARBITRATION between:
SADTU obo Nel, E
(Union / Applicant)
Deaprtment of Education – Western Cape & Vivian Vermeulen
Union/Applicant’s representative: Mr J Adams (SADTU Official)
Union/Applicant’s address: SADTU Office
Telefax / Email: jadams@SADTU.org.za
Respondent’s representative: Ms A Willemse (ER Officer)
Respondent’s address: Private Bag X9114
Telephone: (021) 467 2854
Telefax / Email: (021) 425 8612 / firstname.lastname@example.org
IN THE EDUCATION LABOUR RELATIONS COUNCIL
IN THE ARBITRATION
SADTU obo Nel, E APPLICANT
Department of Education – Western Cape & Vivian Vermeulen RESPONDENT
CASE NUMBER: PSES 838-18/19WC
DATES OF HEARING: 22 and 23 February 2021
DATE OF CLOSING ARGUMENT: 02 March 2021
DATE AWARD SUBMITTED: 29 March 2021
NAME OF PANELLIST: M M Marawu
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing was held at the premises of the department of Education in Worcester and concluded on 23 February 2021. The Applicant was represented by her trade union (SADTU) official, Mr Jacques Adams and the department by Ms Athne Willemse in the arbitration proceedings.
ISSUES IN DISPUTE
2. I am required to determine fairness in respect of the employer’s conduct relating to the promotion/appointment process for the Head of Department (HOD) position at Morrisdale Primary School.
3. Ms Nel is employed as Post Level 1 Educator at Morrisdale Primary School since January 1992. She applied for an HOD position that became vacant at his School in 2018. The position was filled in January 2019; Mr Vivian Vermeulen was the successful candidate.
4. The Applicant has since challenged the Respondent’s conduct relating to the alleged irregular process and selection outcome thereof.
SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT’S CASE
5. Ms EC Nel is the applicant in this matter and she testified that he has been an Educator with the department for a period of about 29 years and acted at management (HOD) level for more than three years. She applied for the HOD position at Morridale Primary School as it was advertised in August 2018. She enthusiastically responded to the advertisement of the position, as she believed that she was well suited for the post. She was of the belief that she had the requisite skills and was nominated as the best suited candidate for the position by the School Governing Body (SGB).
6. Although she possessed all the necessary credentials required for the position, including CAPS training and had acted as the HOD (intermediate phase) for more than three years, she was not appointed to the position. She received feedback from the SGB chairperson in November 2018, informing her that she was not selected by the department’s authorities and the third candidate (Mr Vivian Vermeulen) was to be appointed, instead.
7. She was regarded as not suitably qualified by the department’s authorities to be appointed at intermediate phase, as her qualification obtained in 1991 (Diploma) was for a foundation phase (junior primary). She found this strange because since she was appointed in 1992 she always taught at senior intermediate phase for 27 years and was appointed to act as the intermediate phase HOD since June 2015.
8. She went through various training and development course facilitated by the department, in order to develop her skills for intermediate phase teaching purposes. She met all the necessary requirements listed on the job advertisement circular and also acted as the HOD for grade 4 to 6 for more than three years.
9. She feels that the department’s decision to overlook her put her in a very unfair position, as she could never be appointed for the HOD post at intermediate phase and can never be able to lead at foundation phase, because she never taught at that level; she has no teaching experience for foundation phase.
10. The Applicant’s representative (SADTU’s Mr Jacques Adams)further argued that the department’s witness (Mr Harry Wyngaard) could not prove that the employee was not ‘suitably qualified’ to teach in the intermediate phase, as claimed by the first Respondent. The appointment of the second Respondent (Mr Vivian Vermeulen) could not be justified in the context of Ms Nel’s more than 27 years teaching experience and three years acting as HOD at intermediate phase level in the same school.
11. The department never raised the issue of Mr Nel’s not ‘suitably qualified’ to teach at the intermediate phase for all the 27 years she has been teaching at that level and acted as the HOD for more than three years. Her application for the HOD position was allowed to go through the entire selection process, until she was nominated as the leading (best) candidate by the SGB selection panel. The decision to reject her appointment on the basis that she is not ‘suitably qualified’ to teach at intermediate phased is grossly and stands to be challenged.
12. While allowed to teach and act as the HOD for intermediate phase, Ms Nel was subjected to Continuing Professional Development in the same phase for many years, by her employer (Department of Basic Education). The provincial Head of the Department’s erred in its decision not to appoint the Applicant from the appointment process, when she was clearly recommended by the SGB as the best candidate for the position. He could have required the whole selection process to be redone if he had proper consideration to the principles of fairness and due process.
THE RESPONDENT’S CASE
13. Mr Harry Wyngaard (Deputy Director: Evaluation of Qualifications & Determination of Educators Salaries) testified that he has been with the department of Basic Education for about 40 years, and served as the Deputy Director for seventeen years. He was part of the process that designated the assistant Director within the department of Education to assess and measure the SGB’s nominated candidates against the department’s existing policies. The Minimum Requirements for Teacher Education Qualifications (MRTEQ) in particular linked with the Personnel Administrative Measures (PAM) and feedback correspondence was served on the SGB to inform that the Applicant was not to be appointed, as she was not ‘suitably qualified’ to be appointed at intermediate phase level.
14. He is familiar with the bad practices of the past where some Principals and department officials placed unsuitably qualified Educators in wrong phases; he cannot allow such irregularities to continue unfettered. The decision was based on the fact that Ms Nel had obtained a Junior Primary Diploma in foundation phase, which is not appropriate qualification needed to teach in the intermediate phase.
15. The appointed candidate (Mr Vivian Vermeulen) had a proper qualification of Bachelor of Education in the Intermediate and Senior Phase; he had also attended relevant CAPS training offered by the department for Continued Professional Development. The Applicant failure to possess the requisited qualification (Diploma) for teaching at the intermediate phase, was the main reason for her recommended appointment to be reviewed by the department’s authorities.
16. Circular 0026/2019 provides clear guidelines in terms of the evaluation of qualifications for Foundation and Intermediate Phase, Post Graduate Certificate in Education, when candidates are assessed for appointment into vacant positions; MRTEQ policy clarified much more explicitly in the circular.
17. Mr Rudolph Baard (Joined Party Representative – SAOU Official) submitted on behalf of the second Respondent (Mr Vivian Vermeulen) that the final decision to appoint any of the three nominated or recommended candidates rests at the discretion of the Department’s Head (HOD). The appointed candidate (Mr Vermeulen) was suitably qualified to be appointed at the position of the HOD Intermediate Phase, as he was.
18. The final assessment done within the department resolved that Mr Vermeulen possessed the required qualification to be appointed to the position and the Applicant was not suitably qualified; the Deapartment’s HOD applied his discretion correctly, in the circumstances.
19. The post advertisement did not necessarily list CAPS training as part of the core requirements, but decided after receiving CV on the core criteria that included CAPS training. The ratification process was not part of his role, so he did not participate in it.
ANALYSIS OF SUBMISSIONS AND ARGUMENTS
20. It is common cause that the Applicant was among the candidates that applied and recommended as the best candidate by the SGB, but was not appointed for the HOD Intermediate Phase post at Morrisdale Primary School, where she taught for 27 years and acted on the same position for more than three years. She was unsuccessful in this application for promotion, but the competing candidate (Mr Vivian Vermeulen) who was the third preferred choice of the School Governing Body was ultimately appointed to the position in January 2019.
21. The main challenge in this matter is directed at the department’s officials’ decision to review the SGB’s recommendation and reject the Applicant’s appointment, on the basis that she did not possess ‘suitable qualification’ to be appointed at intermediate phase, as she only obtained Junior Primary Diploma for foundation phase in 1991. The Respondent’s witness (Mr Harry Wyngaard) conceded that the Applicant’s 27 years’ teaching experience in the intermediate phase as well as more than three years acting stint as the HOD, was caused by some of the Principal’s and the department’s officials irregular practices of the past.
22. The irregularities such as alleged by the department’s witness could only be cured when the appointment process in respect of the HOD intermediate phase position was assessed for final evaluation by the relevant experts within the department of Education. The main reason (factor) detected in the final assessment stage for the Applicant’s appointment to be reviewed (rejected) was that she did not have a ‘suitable qualification’ to be appointed at intermediate phase.
23. Most of the issues to this dispute are common cause, the only dispute between the parties rests on the question whether the department’s final decision not to endorse the Applicant’s appointment, based on the reason provided above, is consistent with a fair selection and appointment process. It was not denied by the department that the Applicant had acted as the HOD in the intermediate phase at the same school since June 2015 and her acting appointment was confirmed by the department, including her 27 years teaching experience was without fault.
24. The notion of the ‘suitably qualified’ person is explained in the English Oxford Dictionary as follows:
“… qualified to do something having the practical knowledge or skills to do something…”
25. Furthermore, it also became apparent during the arbitration proceedings that the applicant did have the knowledge and necessary to perform as the HOD intermediate phase for more than three years and taught at the same level, from as far as back as 1992. The fact that she did not have the formal intermediate phase qualification (Senior Primary Diploma) did not disqualify her from teaching at the same and acting as the HOD for all the said years, until she was recommended by the SGB’s selection panel to be appointed permanently to the position.
26. It became evident during arbitration proceedings that the manner in which the applicant’s recommendation (selection) was set aside at the final stage of the appointment process for the lack of formal qualification, whereas she actually acted on the same position without fail for more than three years, cannot be deemed to be consistent with fair and regular practices applicable for governing such selection processes.
27. The detection of the alleged qualifications irregularities that are seemingly well known within the department cannot be resolved fairly if random targeting of subordinate individuals is done selectively and in a narrow fashion that merely deal with the few and not the rest of the known alleged irregularities.
28. It seems to me the department could have only benefited from the alleged qualification irregularity it refers to when rejecting the Applicant’s permanent appointment, as it did not raise any incompetence or poor performance issues, in the circumstances. There were also no details presented to suggest that the department was duly concerned by the widespread nature of the problem, as it relates to irregular qualifications aggravating incompetence and poor performance problems within the Education system. It just came up as one isolated remedial punitive action for rejecting the Applicant’s appointment, even though it is said that the department has known about this on-going widespread problem for many years.
29. It seems where the outcomes of this alleged irregular qualifications’ assignment has been useful to the department it has been allowed to fester, but only held against the employee when it is to be considered for her promotion. As a result of this random use of unjust discretionary powers in the final stages of the selection process for the Morrisdale Primary School HOD intermediate phase post, I find that the process did not necessarily adhere to the required principles of fairness in the employer’s conduct as contemplated in section 186(2)(a) of the Labour Relations Act, as amended (the LRA).
30. Based on the evidence presented before me, I am persuaded that the alleged qualification irregularities randomly detected in the final appointment stage, renders this stage of the selection process defective. Having said that, for one to prove substantive unfairness in such unfair labour practice disputes, s/he has to also show that had it not been for the proven unfair conduct, s/he would have been a successful candidate for promotion/appointment.
31. This would require causal connection to be properly demonstrated, in order to justify substantive unfairness finding. When dealing with similar circumstances where there was proven procedural irregularities in KwaDukuza Municipality vs SALGBC  11 BLLR 1057 (LC), Pillemer, AJ held:
“It is only a most exceptional kind of case where there is a certainty that the complainant would have been appointed if considered that actual damages can be proven (as was the case in Willemse v Patelia NO and others  2 BLLR 164 (LC). This is not one of those cases. Accordingly apart from out of pocket expenses, if any, compensation in a case like this can only be for a solatium to redress the injuria. I consider that one of the purposes of the award of compensation for an unfair labour practice in an appropriate case will be to compensate for the injuria of being treated unfairly (compare Reckitt & Coleman (SA) (Pty) Ltd v Bales  8 BLLR 32 (LAC) at 48; Harmony Furnishers (Pty) Ltd v Prisloo  14 ILJ 1466 (LAC)) and, in this instance, of unfairly being denied an opportunity to compete.”
32. In this particular matter, I could not establish from the information presented in the arbitration proceedings that the Applicant would have been certainly successful if there had been a proper intensive assessment done for the process to be reviewed within the context of addressing general qualifications’ irregularities problem within the system.
33. It follows therefore that suitable remedy to be considered in such a case, would be appropriate compensation amount to be awarded as reasonable solatium to redress the injuria of being treated unfairly in respect of the selection process.
34. The Applicant’s unfair labour practice claim has been proven in respect of procedural unfairness, but substantive unfairness could not be established.
35. The Applicant must be compensated with an amount of R30000.00 (thirty thousand) for the injuria suffered due to the unfair process.
36. The above amount must be paid to the Applicant by no later than 07 April 2021.
M M Marawu