PSES493 – 19/20GP

Award  Date:

11 March 2021

IN THE ELRC ARBITRATION
BETWEEN:

SD MABUZA “the Applicant”

and

DEPARTMENT OF EDUCATION – GP AND ANOTHER “the Respondents”
AWARD

Case Number: PSES493 – 19/20GP
Last date of arbitration: 10 February 2021

Written arguments received on: 17 February 2021

Date of award: 12 March 2021 (extension arranged)

COEN HAVENGA
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

Details of hearing and representation

1. The arbitration hearing was held over several days, the last day being on 10 February 2021, at the offices of the Gauteng Department of Education in Benoni.

2. The Applicant is Mr Mabuza, SD, represented by Mr Ntuli, B, an official of SADTU. The 1st Respondent is the Gauteng Department of Education, represented by Mr Nkosi, P. The 2nd Respondent is Ms Mahlalela, E, represented by Ms Moloto, A, an attorney.

Issue to be decided

3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties agreed that the arbitrator is to determine whether the failure of the 1st Respondent to appoint the Applicant to the position of Deputy Principal constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), and if so, what relief is to be awarded.

Background to the dispute

4. The Applicant referred an unfair labour dispute relating to promotion to the Council. The Applicant applied for a Deputy Principal post (“the post”)at Sozizwe Special School (“the School”), advertised in the Vacancy Circular of 2019 under post number EN19ED1023 but was not appointed. The 2nd Respondent was appointed instead. The Applicant alleges that he was the better candidate and that he had a legitimate expectation to be appointed. The relief sought by the Applicant is appointment in the promotional post he unsuccessfully applied for.

5. The 1st Respondent argues that the although the Applicant was the 1st recommended candidate, there was no irregularity in his non-appointment. The District Director acted within her authority when she appointed the 2nd Respondent who was also the 2nd recommended candidate. The District Director has the authority and managerial prerogative in terms of Section 6(3)(f) of The Employment of Educators Act, 76 of 1998 (“the EEA”) to appoint any suitable candidate of the list of candidates recommended by the SGB.

6. The SGB acted in bad faith by recommending the Applicant as 1st recommended candidate, while he did not have the necessary experience or qualifications for the post. The SGB went as far as running down the other two recommended candidates, which showed their bias in favour of the Applicant.

Summary of evidence

What follows is only a summary of evidence deduced at the arbitration hearing and does not purport to be a verbatim transcription of all the testimony given. The digital recording of the proceedings will reflect the complete testimony of the witnesses.
Applicant’s case

7. The Applicant submitted the documents contained in Bundle A.

8. Siphamandla Desmond Mabuza, the Applicant, testified under oath that he did work in a special school, i.e. Actonville Training Centre for over a year. The minimum requirements for the post leadership, administration and management skills. He did meet the minimum requirements. He was shortlisted, he went for the interviews and was recommended by the SGB. The School is a Moderate Intellectual Disability School. It is on a secondary school level. The Applicant has a B. Ed. Degree, which included Psychology 1 to 3. The course included studying how to deal with learners with disabilities and learning difficulties, which qualifies him for the post. He is currently busy with post graduate studies relating to learners with special needs. He was the 1st recommended candidate on the SGB list. His recommendation was ratified by the SGB. The Applicant refers to section 6(3)(b) of the EEA, relating to when the HOD may decline the recommendation of the SGB. His recommendation complied and the District Director was supposed to appoint him in the post.

9. Collective Agreement 2 of 2005 (“the Agreement”) should override the provisions of section 6(3)(f) of the EEA. He did not decline the post, and in terms of clause 4.2.1 of the Agreement he should have been appointed. A31 reflects a letter from Actonville Training Centre confirming that he worked there for 1 year and 3 months. It is a school for disabled learners. He was requested after the interviews to submit this as proof. The experience of special schools was not part of the advertisement of the post.

10. Under cross-examination the Applicant testified that the SGB secretary told him that the Director did not want to appoint him because he did not have experience in special schools. He does not know whether the Director already had the file. It happened after the interviews were concluded. The letter from Actonville Training Centre did not form part of his original application. It was not signed by the principal of that school, and not date stamped. It is a valid document.

11. His employment period with Actonville Training Centre was not included in the application form he completed, because it was not required in the advertisement. He did not think it was necessary. He agrees that the advertisement stated that the post related to a specific type of school, i.e. Sozizwe Special School.

12. With reference to clauses 5.2 and 5.3 of Circular 34 of 2007, relating to the application of the Education Laws Amendment Act, 24 of 2005, the Applicant agrees that despite the order of preference on the SGB list, the HOD has the authority to appoint any suitable candidate whose name appears on the list. The Applicant agrees that the HOD or Director appointed on of the candidates whose name appeared on the SGB list of recommended candidates.

13. The Applicant does not dispute that he had a fair opportunity to compete for the post. He cannot say that the 2nd Respondent was dishonest or misled the interview panel. He agrees that the 2nd Respondent has a post-graduate Certificate in Education with specific reference to Learners with Special Needs (“LSEN”), while he did under-graduate Psychology. He believes that his qualification was overlooked. He knew it was a post at a special school when he applied. He agrees that the 2nd Respondent met the requirements for the post.

14. He agrees that there was no irregularity in respect of the procedure that was followed with the appointment, apart from the fact that he did not decline the appointment.

15. Thabo Monyatsi, the SADTU East Rand Deputy Chairperson was called to give expert evidence in respect of the interpretation of statutes. The Respondents’ representative objected to him giving expert evidence in that regard as he is not a legal expert, and not qualified in law. The Applicant’s representative conceded that the witness is not qualified in law, and that he will no longer require the witness to testify.

16. Note: An application by the Applicant’s representative for further postponement of the case to source another witness to testify in respect of the interpretation of statutes was dismissed, on the basis that the matter had been postponed several times on behest of the Applicant already. The issues in dispute had been clear all along, and the Applicant had ample opportunity to source and call witnesses. I could find no compelling reason to grant the Applicant yet another postponement.

1st Respondent’s case

17. The 1st and 2nd Respondents submitted the documents contained in Bundles B and D

18. Mapule Tsema (“Tsema”) testified under oath that during 2018 she worked at the School in the administration. She was the scribe for the recruitment process of the deputy principal post. After the process was completed, she compiled the file that had to be submitted for the District office. The Applicant did not call her to bring something after the interviews. After the interviews she also did not call any candidate. The candidates bring all their documents to the interviews.

19. Under cross-examination Tsema testified that she was excused from the meeting that the Director had with the principal and SGB of the School. She only assisted with administration and paperwork.

20. Emily Mochela (“Mochela”) testified under oath that she is an assistant-director in HR since 2015. She deals with recruitment and making sure that posts at schools are filled. After the School did the shortlisting and interviews, the SGB sent their three recommendations to HR. HR make sure of compliance and take the file to the Director. The Director has the final say. In this case the Director was not happy with the 1st recommended candidate, the Applicant, as he did not have the LSEN qualification for a school with special needs. She called the SGB to discuss their recommendation with them. She therefore chose to appoint the 2nd recommended candidate on the SGB’s list, i.e. the 2nd Respondent, because she had the required LSEN qualification.

21. Psychologist may not be appointed at school level, only at head office level. The Applicant was not called to submit the letter reflected in A31.

22. Under cross-examination Mochela testified that they verify the applications and check whether the applicants’ qualifications meet the post requirements. They then report to the Director. The SGB may add post requirements to the minimum post requirements. Sozizwe Special School is a LSEN school, and a qualification in dealing with learners with disability is a requirement. A52 is proof that the 2nd Respondent does have an Advanced Certificate: Learners with Special Needs, which fulfils the post requirement.

23. The SGB was initially not happy with the Director’s decision to appoint the 2nd recommended candidate, but they eventually agreed with the appointment. The SGB simply went on the results of the interview and did not consider whether the candidates actually have the required LSEN qualification. The Applicant did not meet that requirement, therefore the Director appointed the 2nd recommended candidate on the SGB preference list. The SGB can only make recommendations, and the Director has the final say in terms of section 6 of the EEA.

24. The post advertisement did require skills related to the specific school type, which in the case of Sozizwe Special School is a LSEN qualification. There is a distinction between an ordinary school and a special school type. In respect of a special school the candidates must have a qualification in dealing with the learners of a special needs school. A person with a degree in psychology will not be appointed at a special school. The Applicant had no specific completed qualification in dealing with learners with special needs. He had no experience in LSEN schools. The letter form Actonville Training Centre was not attached to his application. The SGB brought it to the meeting with the Director. There is no confirmation on the PERSAL system that he did indeed work there. The letter was also not signed by the principal of that institution, but by somebody on his behalf.

25. Section 6(3)(b)(ii) of the EEA states that the HOD may decline the recommendation of the SGB if, amongst others, the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion, or transfer. The Applicant did not comply with the LSEN qualification requirement, therefore the Director had the authority to decline his recommendation.

26. The Applicant did not have the option to decline the post in terms of clause 4.2.2 of Collective Agreement 2 of 2005. He did not meet the requirements of the post, and clause 4.1.3 therefore applied. He was not offered the post, and therefore did not have the option of declining it.

2nd Respondent’s case

27. The 2nd Respondent did not present any evidence and closed her case.

Analysis of evidence and argument
28. The Applicant and Respondents submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing. I have also considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the Education Laws Amendment Act, 24 of 2005, the Personnel Administrative Measures (PAM), 1999, Collective Agreement 2 of 2005, Collective Agreement 3 of 2016, Circular 34 0f 2007 as well as the case law relevant to the nature of this dispute.

29. The parties agreed that the arbitrator is to determine whether the failure of the 1st Respondent to appoint the Applicant to the position of Deputy Principal at Sozizwe Special School constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the LRA, and if so, what relief is to be awarded. It is not in dispute that the appointment would have constituted a promotion for the Applicant.

30. The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads as follows:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving -
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”.

31. The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a) above. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.

32. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488, as well as South African Municipal Workers Union obo Damon v Cape Metropolitan Council (1998) 20 ILJ 714 (CCMA). What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).

33. The arbitration of the promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant - see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).

34. I firstly have to decide whether there was unfair action by the 1st Respondent that resulted in the Applicant not being appointed in the post of Deputy Principal of Sozizwe School, and if so, whether the action falls within the definition of an unfair labour practice as defined in section 186(2) of the LRA.

35. The Applicant argues that he met the requirements of the post, and that he was the 1st recommended candidate on the preference list of the SGB that was sent to the Director. He therefore should have been appointed in the post.

36. The arbitration of a promotion dispute does not entail a hearing de novo, but rather a review of the employer’s decision. In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007), where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.

37. The Applicant believes that he was the best candidate for the post based on the fact that he did the subject of Psychology at under-graduate level, and that he worked at a special needs school for just more than a year. The authenticity and validity of the letter from Actonville Training Centre was placed in dispute by the Respondent, based on the fact that it was not signed by the principal of that institution, and that it was not date stamped. The Applicant did not call any witnesses or present any evidence to prove the authenticity and validity of the letter, and it therefore remained in dispute.

38. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle the Applicant to substantive relief the Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment can be awarded – see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than a successful candidate who was appointed, but also that he was the best candidate for the position.

39. I find that the Applicant did not show this. The post requirements required experience and qualification in LSEN type of school, i.e. specifically Sozizwe Special School. The Applicant does not have a specific qualification in dealing with learners with special needs. The fact that his under-graduate studies included Psychology 1 to 3, does not trump the specific post-graduate qualification of the 2nd Respondent. The post advertisement did require skills related to the specific school type, which in the case of Sozizwe Special School is a LSEN qualification. There is a distinction between an ordinary school and a special school type. In respect of a special school the candidates must have a qualification in dealing with the learners of a special needs school. The undisputed evidence of the 1st Respondent shows that a person with a mere degree in psychology will not be appointed at a special school. The Applicant had no specific completed qualification in dealing with learners with special needs. He had no experience in LSEN schools. The letter from Actonville Training Centre was not attached to his initial application. The authenticity of that letter was never proven by the Applicant, and there is no confirmation on the PERSAL system that he did indeed work there. The 2nd Respondent does however have a post-graduate Advanced Certificate: Learners with Special Needs, which fulfils the post requirement.

40. Section 6(3)(f) of the EEA states that “Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.”

41. Section 6(3)(b)(ii) of the EEA states that the HOD may decline the recommendation of the SGB if, amongst others, the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion, or transfer. The Applicant did not comply with the LSEN qualification requirement, therefore the Director had the authority to decline his recommendation.

42. The Applicant relies on the provisions of Collective Agreement 2 of 2005 to argue that because he did not decline the post, the Director had no authority to not follow the recommendation of the SGB and appoint him in the post. It is however trite law that the EEA is primary legislation, which would have authority over collective agreements. Nevertheless, the Applicant did not have the option to decline the post in terms of clause 4.2.2 of Collective Agreement 2 of 2005. He did not meet the requirements of the post, and clause 4.1.3 therefore applied, which states that the recommended candidate must meet the requirements of the post. He did not meet the LSEN school requirement and was for that reason not offered the post. He therefore did not have the option of declining it.

43. The Applicant must prove that the decision not to appoint him was unfair – see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC). What is fair depends on the circumstances of a particular case and essentially involves a value judgement – see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee – see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT supra para 38. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.

44. I find the decision by the HOD or Director to appoint the 2nd recommended candidate on the SGB list, i.e. the 2nd Respondent, to be justified in law. It is indeed so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.

45. I am of the opinion that the 1st Respondent had reasonable and fair grounds for not appointing the Applicant, and it could not be classified as defective reasoning on the part of the 1st Respondent.

46. Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process, I find no substance in the argument that the Applicant was treated unfairly. The 1st Respondent did not act irrationally, capriciously or arbitrarily.

47. The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the 1st Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.

48. The Applicant is not entitled to relief.

Award

49. The application is dismissed.

SIGNED AT KEMPTON PARK ON THIS 11th DAY OF MARCH 2021.


Coen Havenga