PSES 383-20/21

Award  Date:

28 April 2021

Case Number: PSES 383-20/21
Commissioner: Catherine Willows
Date of Award: 28 April 2021

In the matter between


NAPTOSA obo ISABEL STRAUSS
(Applicant)

And



EASTERN CAPE DEPARTMENT OF EDUCATION
1st Respondent

MRS NA BETELA
2nd Respondent



DETAILS OF HEARING AND REPRESENTATIONS

1. This arbitration was heard on the 12th April 2021 via Zoom Virtual Conferencing.

2. It came before the ELRC in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).

3. Mr A Adams of NAPTOSA appeared for the Applicant, Mrs Isabel Strauss. The 1st Respondent was represented by Mr Samuel Louw, Assistant Director: Labour Relations Officer. The 2nd Respondent, Mrs NA Betela, was represented by her Union Representative of SADTU, Mr Rodney Mtywaru. Interpretation services were not required.

4. Pre-Arbitration minutes were compiled by the parties on 9 November 2020 and submitted.

5. Both the Applicant and 1st and 2nd Respondent(s) utilised the same bundle of documents, this was captured and recorded as Bundle 1 and Bundle 2, the evidence of which was accepted unless specifically placed in dispute.

6. The proceedings were digitally recorded, and hand-written notes are on file.

7. The Applicant and the 2nd Respondent submitted closing arguments on 19 April 2021, and such have been considered in preparation of this Award. No closing arguments were submitted by the 1st Respondent, by the agreed upon time frame of 5:00PM on 19 April 2021.

8. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.

ISSUE TO BE DECIDED

9. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Kuyasa Special School, Makhanda, Volume 2-2020/384 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

10. In terms of the pre-arbitration minutes filed by the parties on 9 November 2020, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.

11. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Kuyasa Special School, Makhanda, a position of which the successful incumbent was appointed as from 19 October 2020.

12. The Applicant holds the position of Post Level 1 Educator at Kuyasa Special School, Makhanda. She applied for the position of HOD PL2, Kuyasa Special School, was shortlisted alongside the 2nd Respondent, was interviewed but not appointed. Two candidates, namely, the Applicant and the 2nd Respondent were shortlisted and interviewed.

13. The interviews for the position were held on 31 August 2020, with Panellists, namely, Dennis Swanepoel; Bealuah Douglas; Loyza Mcekana and Ntombi Slange.

14. The Applicant scored a percentage of 19.75% and the 2nd Respondent a score of 20.5%.

15. At the ratification meeting on 9 September 2020, it was held: “Recommendation: The highest score, Mrs Betela as member number 1; intermediate phase qualification; computer literacy; requirements of the post”.

16. The Applicant, in terms of relief, is requesting the appointment to be set aside and for the process to be started afresh.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANTS’ CASE
17. The Applicant submitted under oath that she completed the application form whereby she listed her qualifications as well as her nineteen (19) years of teaching experience. On the EDP 01 Form she states that she possesses the following qualifications: HDE – (English Literacy; Life Skills; Mathematics); Bachelor of Education (Honours) (Music; Educational Psychology; Augmentive and Alternative Communication). For languages, she states: Xhosa (developing); English (established); Zulu (not established) and Afrikaans (established).

18. The Applicant submitted that in the advertisement for the position, (Component 084 153; Emis No. 200100420 – Grade 4) the medium of instruction is stated as that of Afrikaans.

19. In the converse, the ED 01 Form of the 2nd Respondent states the following qualifications: Senior Teachers Diploma (Mechanical); ACE (Mathematics Literacy) and Bachelor of Education (Mathematics). For languages, the 2nd Respondent provides the following: Xhosa (established); English (developing); Zulu (not established) and Afrikaans (not established).

20. As a result of the 2nd Respondent being “not established” in the medium of instruction of Afrikaans, the Applicant is of the opinion that the 2nd Respondent did not meet the minimum requirements for the position and as such, her appointment was arbitrary and unfair.

21. In closing, the Applicant submitted judicial precedent in support of her argument. It was motivated that there was no scope for the selection panel to divert from the requirements as set out in the advertisement and the actions in doing so vitiated the process.

22. The panel’s action of changing the requirements for the position was ultra vires and the 2nd Respondent was appointed directly due to the unlawful actions of the selection panel in varying the selection criteria; this was clearly unfair to the Applicant.

23. The 2nd Respondent was not able to make it past the first round of recruitment; she should have been immediately eliminated. Her CV and application should never have reached the selection panel because she could not be shortlisted in that she never possessed the qualifications as set out in the advertisement.

RESPONDENT’S CASE:

24. The 1st Respondent called Mrs N Mcekana (Secretary of SGB Panel) to testify under oath.

25. Mrs Mcekana submitted that they (the SGB Panel) were trained by the District Office of the 1st Respondent in conducting the interview processes. They shortlisted the two candidates and held interviews for such on 31 August 2020.

26. On 9 September 2020 the Panel met in the Principal’s office and the recommendation to appoint the 2nd Respondent to the position was ratified. She stated that “we were sure everything was 100% as we followed the right processes” and also that the medium of instruction at the school was that of English. She furthermore stated that “we did not discuss the Afrikaans thing” and, according to her knowledge the post was advertised for someone to use English.

27. Under cross-examination, Mrs Mcekana stated that she did peruse the Bulletin before the process commenced but stated that “I did not know what the medium of instruction was”. When posed the question as to whether the post was wrongly advertised, whether it should have been re-advertised, Mrs Mcekana replied that “the kids need a teacher”.

28. In closing, the 2nd Respondent’s representative submitted that the medium of instruction at Kuyasa Special School is English and that Mrs Mcekana had testified that Bulletin Volume 2 of 2020 omitted English and that the post was wrongly advertised.

ANALYSIS OF EVIDENCE AND ARGUMENTS

29. Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any unfair act or omission that arises between an employer and an employee involving-
a. Unfair conduct by the employer relating to the promotion....”

30. The test is therefore whether the conduct or omission of the employer was unfair when coming to the decision to promote a particular employee.

31. In determining whether the employer was fair or not the following have to be taken into account: -

• Whether the failure or refusal to promote was caused by unacceptable irrelevant or invidious considerations on the part of the employer or-
• Whether the employer’s decision was arbitrary, or capricious, or unfair or
• Whether the employer failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory,
• Whether there were insubstantial reasons for the employer’s decision not to promote.
• Whether the employer’s decision not to promote was based on a wrong principle.
• Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).

32. It is trite that the onus of proof in matters relating to the unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.

33. The Applicant in this dispute bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion in relation to her. She needs to prove that the dispute referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and; that she is entitled to the relief sought.

34. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.

35. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.


36. Expressed somewhat differently, the employee must demonstrate that she was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. She must show that on the criteria used to select another person above her, she stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H).

37. An employee who refers a promotion dispute must do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33).

38. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Kuyasa Special School, Makhanda, Volume 2-2020/384 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.

39. More specifically, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.

40. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Kuyasa Special School, Makhanda, a position of which the successful incumbent was appointed as from 19 October 2020.

41. It was not placed in dispute that the 2nd Respondent had signified “not established” on the ED01 Form when stipulating her fluency in Afrikaans. She therefore is not fluent in the language. It was also not suggested by the 1st Respondent that the stipulation in the Bulleting by placing “medium of instruction: Afrikaans” was an error. This was only suggested in closing arguments submitted by the 2nd Respondent that the post was wrongly advertised in that it omitted English as the language.

42. In the absence of any evidence to the contrary, I can therefore assume that the intention to place Afrikaans as one of the requirements was intentional.

43. It is not clear why the interviewing panel disregarded this requirement. Mrs Mcekana was insistent in her testimony that the process had been conducted in terms of their appropriate training and was proper and fair. She was also insistent that she had carefully perused the advertisement prior to the process commencing. However, she stated that she was not aware that Afrikaans was the medium of instruction required.

44. For the requirements of an advertised post to be met therefore, cognisance must be taken of the objective of the policy to ensure that the candidate who best meets the selection criteria is appointed. The short listing of a candidate who least meets the set selection criteria will ordinarily fly on the clear face of the objective of the policy. Such short listing would then be arbitrary as contrary to the selection criteria.


45. In South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 16; JA 56/06 (3 August 2011) (SAPO) the Applicant knew that a valid driver’s licence was a pre-requisite for applying for the advertised post as the advertisement clearly stated that one of the requirements for the role was a valid driver’s licence. Despite this the third respondent submitted a CV which stated that she was in possession of a valid driver’s licence, only for the applicant to later, after appointing the third respondent, find out that the third respondent did not have one. The third respondent was then subsequently dismissed.

46. The Labour Appeal Court in SAPO mentioned above, found that the commissioner had not properly applied his mind to the facts submitted, as the commissioner found that although the applicant had committed an act of misconduct, it was not so severe because the applicant made a mistake by not checking her CV before she sent it, as the CV was supposed to reflect learners licence and not drivers licence. The applicant credited this mistake on her CV to the fact that another individual had typed up her CV. The commissioner therefore set aside the dismissal. The court found that if the commissioner’s award were to stand it would “make nonsense of an employer’s right to set minimum and functional standards for each position it wants to fill.” The court found that dismissal was fair.

47. This case (SAPO) points clearly to the fact that, where a requirement advertised is inherent to the operation of the job then the employer is by no means allowed deviation from the advertisement. However, had an employer not mentioned a particular requirement as inherent in the advertisement, to then subsequently add an additional requirement post the advertising phase would be unfair and the employer should then start the process all over and re-advertise the job.

48. The fundamental reason why an employer should not ignore a minimum requirement is that there could be others who would have applied for the post had they known that a stated minimum requirement was in fact flexible. The procedurally fair response is for the employer to withdraw the advertisement and to re-advertise the post with that minimum requirement withdrawn or stated as simply a desirable attribute.

49. 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.

50. To do that she needs to show that, but for the irregularity or unfairness, she 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.

51. 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”.

52. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.

53. Cognisant of the hesitancy to interfere, the actions by the 1st Respondent in disregarding the requirement of Afrikaans as the medium of instruction establishes gross unreasonableness.

54. In this dispute the findings are that the process of promoting the 2nd Respondent was not conducted substantively and procedurally fair and the discretion of the 1st Respondent was not exercised in a fair manner.

55. Furthermore, my findings are that in this dispute the Applicant has discharged the onus to prove that there was unfairness on the part of the 1st respondent which warrants interference by me in this award.

56. In the circumstances I hereby issue the following award;

AWARD
a) The First Respondent, namely, Department of Education: Eastern Cape committed an unfair labour practice against the Applicant, Isabel Strauss by appointing the 2nd Respondent, Mrs NA Betela, into the post of HOD PL2 of Kuyasa Special School, Makhanda;
b) The 1st Respondent is ordered to remove the 2nd Respondent from the position of HOD PL2 of Kuyasa Special School, Makhanda and start the appointment process afresh with effect from
30 April 2021.
c) No further order is made.

Signature:
Catherine Willows
ELRC Panellist