IN THE ELRC ARBITRATION
Bernice Dianne Manuel “the Applicant”
The Head of the KwaZulu-Natal
Department of Education “the First Respondent”
Thulshan Ankoor “the Second Respondent”
Case Number: PSES984-18/19KZN
Last date of arbitration: 23 March 2021
Date of award: 31 March 2021
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 12 March 2020 and the hearing of evidence was finalized on 16 March 2021. It was held at the KwaZulu-Natal Department of Education’s offices situated in Pietermaritzburg. On conclusion of the hearing of evidence it was agreed that the parties would submit written closing arguments by 23 March 2021.
2. The Applicant appeared and was represented by a legal practitioner, Advocate J B Sookraj. The Applicant and one other witness testified on her behalf and a bundle of documents, marked exhibit A, was handed in.
3. The First Respondent, the Head of the KwaZulu-Natal Department of Education, was represented by a departmental employee, Mr S Daniso.
4. The Second Respondent appeared and was represented by Mr M Ndlovu, an official of SADTU, the Second Respondent’s trade union. He testified and called one other witness. A bundle of documents, exhibit C, was handed in on his behalf.
5. The proceedings were digitally recorded.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA.) In particular, the Applicant alleges that the First Respondent committed an unfair labour practice in failing to promote her to the post of Head of Department: Manufacturing, Engineering and Technology at Eastwood Secondary School (the School.) The Second Respondent was appointed in the said post.
7. Prior to the appointment of the Second Respondent in the disputed post, both the Applicant and Second Respondent were educators at the school. The Applicant taught in the manufacturing, engineering and technology department whereas the Second Respondent did not. He was an educator in the physical science and mathematics department.
8. Both the Applicant and the Second Respondent were shortlisted and interviewed for the post.
9. The interview committee recommended that the First Respondent should appoint the Second Respondent. The school governing body (SGB) endorsed the recommendation of the interview committee and the Second Respondent was subsequently appointed to the post with effect from 1 February 2019.
10. It is not in dispute that the Second Respondent had been allocated the highest number of points by the interview committee.
11. The minutes of the pre-arbitration meeting indicate that the complaint of the Applicant is that:
11.1. The Second Respondent did not meet the required minimum requirements for the post;
11.2. The interview committee was predisposed to appoint the Second Respondent; and
11.3. The First Respondent ought not to have appointed the Second Respondent whilst a grievance of another candidate remained unresolved.
12. The relief sought by the Applicant, according to the pre-arbitration meeting, is for the appointment of the Second Respondent to be set aside and for the appointment process to recommence from the shortlisting stage.
SUMMARY OF EVIDENCE AND ARGUMENTS
Bernice Dianne Manuel (the Applicant) testified as follows:
13. She has a Bachelor of Education Honours Degree with “specialisation in education management” from UNISA (at page 19 of exhibit A) and a Postgraduate Certificate in Education issued by the University of KwaZulu-Natal, which includes a “Technology Learning Area Studies” course (at pages 20 and 21 of exhibit A.) She has taught technology for fourteen years.
14. The qualifications, statutory requirements and experience required for appointment to the post are detailed in paragraph 4 of the relevant circular for the post (HRM circular 59 of 2017,) which paragraph is at pages 2-3 of exhibit A. The Applicant avers that she met all these requirements. The Applicant does not know whether or not she was the best candidate for the post. She also does not know whether she was on the list of three recommended candidates who were forwarded to the First Respondent for consideration. (Although she so testified, it is agreed by the parties at paragraph 2 of the pre-arbitration agreement that both the Applicant and Second Respondent were shortlisted for the post.)
15. The said circular further stipulates (at page 4 of exhibit A) that an applicant for the post was required to have at least two years teaching experience in at least one subject/learning area from the learning field of manufacturing, engineering and technology. As the school did not offer manufacturing and engineering, technology was the most significant learning field and, as indicated above, the Applicant has a postgraduate certificate in education, which includes a course on technology learning area studies. She has taught the subject for fourteen years and thus complies with the requirement of having taught a subject in the learning field of technology for at least two years.
16. Unlike her, the Second Respondent did not possess the necessary qualifications and experience in the learning field of technology as he was a mathematics and science educator. The only experience that the Second Respondent had in teaching technology is when he taught it for periods of two months in 2016 and three months in 2018. The Second Respondent accordingly did not meet the minimum standard of having two years’ teaching experience in a relevant subject/learning area and he must have been untruthful in this regard in his application.
17. A member of the interview committee, Ms Wilson (Wilson) who was an educator representative on the SGB, is a close friend of the Second Respondent. She and the Second Respondent are part of a “clique” who spent time together during breaks at the School. A week before the interviews Wilson had said to the Applicant that she was sorry about what she was about to do to the Applicant but she had to do it. The Applicant had not asked Wilson what she had meant by this comment. At her interview, Wilson showed no interest and sat with her head on the table.
18. Under cross-examination the Applicant accepted that the subject of computer literacy falls under technology and that the Second Respondent’s teaching experience set out on page 1 of exhibit C indicates that he had taught this subject from 2000 until 2006. The Applicant further agreed that the Second Respondent held a Higher Diploma in Education for which he had passed a course in computer literacy. In addition, the Applicant agreed that at page 16 of exhibit C is a Technology Olympiad 2007 Regional Competition certificate that records that the Second Respondent was the educator responsible for the three learners who were awarded the certificate. While the Applicant accepted that the Second Respondent had been the moderator of a grade 9 technology examination in 2016, she stated that this did not require any knowledge of the subject. C19 is what appears to be a school timetable that indicates that the Second Respondent taught “computers” at the school during 2003. The Applicant, however, disputes that this was so.
19. While accepting that computer studies was a learning area relevant to the teaching of technology, the Applicant disputes whether the Second Respondent met the requirements for the post as she stated that he had received his qualification in 2003 and hence had not received training in CAPS. She nevertheless conceded that the advertisement did not disqualify educators who had qualified prior to CAPS.
20. The Applicant had not called for the recusal of Wilson at her interview. She could not state whether Wilson had treated her any differently to the other interviewees. The Applicant submitted that she had not read the entire advertisement and was not aware that she could lodge a grievance about the process and that such grievance had to be lodged within seven days of the grievance having arisen.
21. When the Applicant had appointed the Second Respondent as moderator of the grade 9 technology examination she had expected him only to ensure that the marks were correctly tallied. She did not appoint him due to any knowledge by him of the subject.
22. The Applicant submitted that as a black female she ought to have been appointed instead of the Second Respondent, a black male.
Winnie Khumalo (Khumalo) testified as follows:
23. She is a colleague of both the Applicant and Second Respondent. She initially had worked at the School in its tuck shop but had later qualified as an educator with the Applicant. After having qualified she returned to the School as an educator and the Applicant commenced her employment at the School at the same time. Khumalo had known the Second Respondent since she had worked in the tuck shop. She has a good relationship with the Second Respondent and regards the Applicant as a friend.
24. She knew the Second Respondent as a physical science and mathematics educator and that as far as she knew, he had not taught technology. Under cross-examination, however, she conceded that he had taught technology for about three to four months. She also agreed that he had taught computer literacy at the School. She did not know what was taught in either technology or computer literacy. Under re-examination Khumalo had stated that another educator, Pillay, had acted as Head of the Technology Department prior to the appointment of the Second Applicant. Pillay taught drama, which fell under the scope of technology.
25. It was submitted on behalf of the Applicant that it had been established that she was better qualified than the Second Respondent for the post in that she had thirteen years experience in teaching technology; a Bachelor of Arts Degree; a Postgraduate Certificate in Education, including technology as a subject and an Honours Degree in Education Management whereas the Second Applicant only had approximately eight months experience teaching technology. As such the Second Respondent did not satisfy the minimum requirements for the post as detailed in paragraph 188.8.131.52 of HRM Circular 59 of 2017. The recommendation by the Interview committee that the Second Respondent should be appointed despite him not meeting the minimum requirements for the post was indicative of it being predisposed towards his appointment. The appointment of the Second Respondent whilst a grievance of another candidate remained unresolved was a further indication that his appointment had been pre-determined.
26. It was conceded on behalf of the Applicant that the Second Respondent had the required teaching experience in computer literacy and technical drawing but it was submitted that it had been accepted by the Second Respondent that computer literacy only made no more 15% of the subject area of technology.
27. As the First Respondent had not proven that the Second Respondent was the better candidate, it was submitted that the First Respondent had failed to discharge the onus of proving that the promotion of the Second Respondent had been fair.
28. The relief sought by the Applicant was for the appointment of the Second Respondent to be set aside and for the process of appointing the Head of Department: Technology to recommence from the interview stage. In addition wasted costs of R10 000 was sought in respect of postponements occasioned by the Respondents.
The First and Second Respondents’ cases
29. The Second Respondent and another educator at the School, Felicity Botha (Botha) testified on behalf of the Respondents as detailed below.
Thulshan Ankoor testified as follows:
30. The Second Respondent’s teaching experience is set out on page 1 of exhibit C, which indicates that his teaching experience includes having taught computer literacy from 2000 until 2006; physical science from 2002 until 2019; technical drawing in 2000; agricultural science during 2013 and 2015 and technology during 2016 and 2019. (This record was compiled by the Second Respondent after he had been notified of a grievance lodged against his appointment. The experience after 2018 is not relevant as this would have been after the closing date for the post.) These subjects all fall within the learning field of manufacturing, engineering and technology and thus he had met the minimum requirement of having teaching experience of at least two years in at least one subject falling within the said learning area. The name of the subject technical drawing had fallen into disuse and was now known as technology. He also met the minimum educational qualifications for the post as specified in paragraph 4 of the relevant Circular at page 2 of exhibit A. The qualifications of the Respondent are at pages 4-14 of exhibit B. His qualifications include a Higher Diploma in Education, a Bachelor of Education Honours degree and a Certificate in School Management. The requirement for the post was “a recognized 3 or 4 year qualification which includes professional teaching education.” He is registered with SACE and has taught for approximately 21 years. He had accordingly complied with all the qualifying criteria detailed in paragraph 4 at page 2 of exhibit A.
31. In addition to the abovementioned teaching experience the Second Respondent had been the mentor of learners from the School who had participated in a Technology Olympiad run by Murray and Roberts in 2007. The relevant certificate is a page 16 of exhibit C. He had also been appointed in 2016 by the Applicant as the moderator of a grade 9 technology examination for which she was the examiner as detailed on page 18 of exhibit C. This would indicate that he was accepted by the Applicant as being competent in the field of technology.
32. He was not favoured by the Interview committee. He had only learnt of the grievances that had been lodged approximately one month after his appointment.
33. Under cross-examination the Second Respondent stated that at the time of the Technology Olympiad in 2007 he was the physical science teacher at the School. In a broad sense the Olympiad was concerned with technology but with a focus on the physical scientific aspect.
34. The Second Respondent agreed that given his teaching experience in physical science and mathematics, he was probably better suited to be Head of Department of these subjects. He also agreed that he only had about four months’ experience teaching technology but he elaborated that he had about seven years experience teaching computer literacy and at the School computers fell under technology. The previous Head of Department had also had a background in computers.
35. The Second Respondent stated that computer literacy makes up approximately 10-15% of the subject matter of technology, with the balance consisting of physical and agricultural science. His experience in physical science as evidenced by his involvement in the Technology Olympiad made him well placed to teach the technology design and engineering aspects of technology. He conceded that the Applicant had passed technology as a subject at tertiary level (as indicated by page 21 of exhibit A) whereas he had only passed the subject at secondary level. He nevertheless remained suitably qualified for the post. He similarly conceded that the Applicant was better qualified as a manager.
36. The Second Respondent knew of no reason why the Interview committee would be biased in his favour.
Felicity Botha (Botha) testified as follows:
37. She has been an educator at the School since 1990. She is an English educator though she has taught numerous other subjects.
38. Only someone familiar with the subject matter would be appointed as a moderator. Under cross-examination she maintained that a person unfamiliar with the learning field would not be appointed as a moderator.
39. Botha had not been placed under any pressure to attend the arbitration and testify on behalf of the Second Respondent.
40. It was submitted on behalf of both Respondents that the Applicant had failed to discharge the burden of establishing that the failure to promote her was unfair.
41. The Second Respondent had met the minimum requirements with regards to his qualifications and teaching experience in that he has the requisite degree and twenty one years teaching experience. With regards to the learning field of technology he had taught computer literacy, technical drawing, technology and agricultural science. The fact that the Applicant had appointed the Second Respondent in 2007 as the moderator of a technology examination indicates that she acknowledged that he had the requisite knowledge in the field of technology.
42. The Applicant had failed to prove any bias on the part of the SGB.
ANALYSIS OF EVIDENCE AND ARGUMENT
43. The Applicant bears the onus of establishing on a balance of probabilities that the failure of First Respondent to promote her was an unfair labour practice.
44. ELRC Collective Agreement 3 of 2016 was agreed upon with the purpose of providing guidelines and principles to be applied in unfair labour practice disputes concerning promotions. The said agreement includes the following provisions:
44.1. “The panellist is expected to determine whether the employer’s failure to promote the aggrieved party (Applicant) was substantively unfair, meaning whether the Applicant was not appointed despite being the best candidate given the skills he/she possesses, and a candidate that does not possess the same/similar skills was appointed. From a procedural aspect the Panellist must be satisfied that the Applicant suffered prejudice during a recruitment and selection process for a promotion post.”-item 8;
44.2. Section 28(2) of the Constitution, 1996 “imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.”- item 11;
44.3. “Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest or misled the interview panel or employer.’-item 33;
44.4. With regards to procedural fairness, “strict compliance with the guidelines for appointments provided for in PAM and ELRC collective agreements is not necessary. Substantial compliance is sufficient.”-item 51;
44.5. “Before granting any relief, the arbitrator must consider the effect that the relief that he or she intends to award, is likely to have on the school, the education department and the learners. All awards must be in the best interests of the learners.”-item 56
44.6. “Unless the applicant can demonstrate that he has a realistic chance of being appointed should the process be repeated in a fair manner, it is pointless to set aside the process and direct that it must be repeated.”-item 68;
44.7. “Where an arbitrator decides to set aside the process and repeat it, the arbitrator should also make setting aside the appointment of the successful joined candidate, as it would be senseless to repeat the process when the appointment is not set aside.”-item 69;
45. I shall now consider the evidence in light of the guidelines and principles contained in the collective agreement.
46. It was submitted on behalf of the Applicant that the First Respondent had failed to prove that its appointment of the Second Respondent was fair. As already indicated above, however, the onus was on the Applicant to establish that the failure to promote her was unfair. In the case of IMATU obo Visagie v Mogale City Municipality (JR 86/15)  ZALCJHB 432 it was held that the onus is on the applicant to prove the unfair conduct and as such if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that would be the end of the matter.
47. The Applicant testified that the failure to promote her was unfair as she was a better “affirmative action” candidate than the Second Respondent. I, however, do not attach any weight to this assertion by the Applicant for two reasons. Firstly, this challenge to the appointment of the Second Respondent was not recorded in the minutes of the pre-arbitration meeting as a ground relied upon by the Applicant. Parties are bound by the agreement reached at the pre-arbitration meeting. Secondly, no further evidence was led in this regard on behalf of the Applicant and no submissions in this regard were made on her behalf in her representative’s closing argument.
48. The failure to appoint the Applicant was said to be unfair, in both the pre-arbitration meeting’s minutes and the closing argument, as the Second Respondent did not meet the minimum requirements for the contested post and that the Interview committee had a predisposition to appoint him and not the Applicant.
49. With regards to the alleged failure of the Second Respondent to comply with the minimum requirements of the post, it was not in dispute that he had the necessary academic qualifications, registration as an educator and general teaching experience. These requirements are detailed in paragraph 4 of page 2 of exhibit A. It was, however, submitted that the Second Respondent did not meet the minimum requirement of having at least two years experience in the subject/learning area of manufacturing, engineering and technology. It is not in dispute that the Applicant did meet the minimum requirements. It was conceded by the Second Respondent that in certain respects the Applicant was better qualified.
50. In this regard the Second Respondent testified that he had taught computer literacy for approximately seven years, physical science for approximately fourteen years, technical drawing for approximately twelve months, agricultural science for approximately three years and technology for approximately three months. The applicability of certain of these subjects/learning areas to the learning field of manufacturing, engineering and technology was disputed by the Applicant. It was, however, not disputed that the subject of computer literacy, for which the Second Respondent had well in excess of two years teaching experience, fell within the relevant learning field for the post. It was submitted on behalf of the Applicant that the Second Respondent had conceded that computer literacy made upon no more than 15% of the learning field of technology. This may be so but it does not detract from the fact that at least with computer literacy, the Second Respondent met the minimum requirement of having taught a subject from the learning field of manufacturing, engineering and technology for at least two years. In addition, given that the Second Respondent having been appointed the mentor of learners who participated in a Technology Olympiad and having been appointed by the Applicant as the moderator of a technology examination, it may well be that Second Respondent’s teaching experience in the sciences would also qualify as relevant teaching experience. As it was common cause that computer literacy was a relevant subject/learning area, and the Second Respondent had thus met the minimum requirement I do not have to consider this additional teaching experience any further.
51. With regards to the alleged bias of the SGB the Applicant testified that a member, Wilson, a friend of the Second Respondent and who were said to be part of the same “clique,” had shown no interest in her during her interview by the interview committee. Under cross-examination the Applicant had conceded that she had not asked for the recusal of Wilson. No other evidence in this regard was led on behalf of the Applicant and it was also not put to the Second Respondent or his witness, Botha, that such a clique existed. Instead it was argued on behalf of the Applicant that the bias of the SGB is evident from the mere facts that it had recommended the appointment of the Second Respondent despite his alleged failure to meet the minimum requirements for the post and the decision of the First Respondent to appoint the Second Respondent despite the grievance of the other candidate remaining unresolved. With regards to these two grounds put forward as proof of bias:
51.1. I have already found that the Second Respondent did meet the minimum requirements for the post; and
51.2. No evidence in respect of the alleged outstanding grievance was led and I accordingly have no knowledge of its content.
52. The final objection relied upon by the Applicant was that the failure to promote her was unfair as there was an outstanding objection against the appointment of the Second Respondent when he was appointed. As already indicated, no evidence was led in respect of this grievance. In addition, no evidence was led as how this unresolved grievance rendered the failure to promote the Applicant unfair.
53. In light of the above, I find that the Second Respondent did meet the minimum requirements for the post and that the Applicant has failed to establish that the Second Respondent was appointed due to bias by the SGB or First Respondent.
54. In his closing argument the representative for the Applicant submitted that the Applicant is entitled to wasted costs of R10 000 allegedly caused by postponements of the case brought about by the Respondents. No claim for these costs was brought during the arbitration and thus the Respondents have not been given an opportunity to oppose it. For this reason alone, I cannot consider this claim. In addition, the costs have not been particularized so I do not know what costs are being claimed. The issue of costs is dealt with in item 54 of Part C of the Council’s Constitution and it, inter alia, provides that a costs order in respect of legal fees can only be made if all parties have been so represented. This was not so in this case as while the Applicant was represented by a legal practitioner, the First Respondent was represented by an employee and the Second Respondent was represented by a trade union official. As such, were the Applicant’s claim to be in respect of legal fees, I would not be entitled to consider such a claim. Should the Applicant want to bring a claim for costs, she is advised to bring a substantive application.
55. In light of the above I find that the Applicant has failed to establish that the First Respondent has committed an unfair labour practice involving promotion as provided by section 186(2)(a) of the LRA.
56. The application of the Applicant, B D Manuel, is dismissed.
57. No order is made in respect of costs.
Arbitrator 31 March 2021