Panellist/s: Jonathan Gruss
Case No.: ELRC 1039-19/20 EC
Date of Award: 3 May 2021
In the ARBITRATION between:
NAPTOSA obo Erika Wylie (Applicant)
Department of Education – Eastern Cape & Others
Applicant’s representative: Adv Saayman
Applicant’s address: PO Box 34700,
Newton Park, Port Elizabeth
6055 Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Mr Tsheko
Respondent’s address: Rubusana Building, NU1,
Telephone: 0437086244 & 0605238324
Email firstname.lastname@example.org & email@example.com
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held initially via virtual platform of Zoom and also at the premises of the District Office at the Rubusana Building, NU1, Mdansane. The proceedings were electronically recorded and held on 17 February 2021, 18 March 2021, 19 March 2021 and 16 April 2021. The applicant, Erika Wylie was represented by Adv Saayman, an official from NAPTOSA, a registered trade union. The respondent, Department of Education: Eastern Cape was represented by Mr Tsheko, a Labour Relations Officer. The incumbent third party, Mr Mziwoxulu Mtalana appeared in person and conducted his own case. The SGB of Southernwood Primary School was represented by Mr Moji, the chairperson of the SGB. The parties agreed to submit written closing arguments on 23 April 2021.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA in not appointing/ promoting the applicant, Erika Wylie as Principal at Southernwood Primary School.
3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant is currently employed as a Post Level 2 Head of Department at Southernwood Primary School and earns R361 092.00 per annum.
3.2 The post of principal, post number 153 was advertised in Bulletin 5/2019. Closing date for the submission of applications were 10 October 2019. The applicant applied on 3 October 2019. The advertisement did not provide for a full service school or make mention thereof. The school is a full service school that provides remedial support to learners.
3.3 Both the applicant and the incumbent, Mr Mtalana were shortlisted and interviewed for the advertised post. The incumbent was ranked number 1 and the applicant was ranked number 4 by the interview panel and the SGB recommended the incumbent who was appointed to the post on 19 December 2020 and who took up his post on 24 February 2020.
3.4 The applicant seeks for the appointment of the incumbent to be set-aside and that the post be re-advertised with a new interview panel appointed alternatively she seeks compensation.
4. The applicant claims that the incumbent did not qualify to be placed at a full service school as a principal and he misled the interview panel indicating that he had experience.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6. The Applicant testified under oath to the following effect.
6.1 She has 36 years’ experience in teaching and 9 years as a remedial teacher at a Special Needs School. She had been employed as educator at Southernwood Primary School for 9 years. She is also an HOD (subject) and assists teachers with different curriculums. She also assists teachers from other schools and is the chairperson of the admission committee.
6.2 The principal at the school is required to teach and 28% of all learners are learners with special needs. All teachers need to teach according to the differentiated curriculum. You need to have certain skills to teach differentiated curriculum (DCAP). Principles was subjected to the IQMS assessment, performance scale measurements.
6.3 The incumbent based on his CV has no experience to teach at special needs schools. The incumbent and the SGB are very friendly towards each other and a lot of educators are not happy because of the treatment they receive from him. She had questioned how the financial committee of the SGB could approve funding for weekend away planning workshop.
6.4 Having regard to certain actions taken by the incumbent subsequent to his appointment for instance budgeting for a school camp costing R55 000.00, it is clear to her that the incumbent is not competent to deal with the finances of the school. Fortunately, the camp budgeted for did not materialise due to Covid 19.
6.5 On 11 December 2020, a year-end party was held at the school where alcohol was provided and consumed on the school premises. This party was arranged by the incumbent. This was in contravention with the department’s instruction that no functions may be held at the school due to Covid 19 restrictions. At the party there was eating and no social distancing. She took photographs of the party as proof of the occurrence. Parents are not allowed on the school premises and there were parents who are friends of incumbent who attended the party. They were told by the incumbent on 11 December 2020 that they need not return to school on 14 December 2020 and 15 December 2020 and they just needed to sign the register as if there were at school. The 16th was a public holiday. This is not a quality one would expect of a principal. The incumbent rules by intimidation.
6.6 The incumbent prior to his appointment, was a deputy principal at Nkululeko Primary School. When he was appointed as a deputy principal, his appointment was challenged by Mr Dweba and because of irregularities in the process Mr Dweba receive compensation.
6.7 Under cross examination, she illustrated the unfairness of the treatment in that the interview panel was not properly constituted in that there were no SGB staff members forming part of the interview panel. Mrs Myburgh who at the time was a SGB member representing the staff (teachers) was not called to form part of the panel. According to the advertisement, the post requirements as advertised was management skills, leadership skills and financial skills.
6.8 She further confirmed that she is scheduled to retire in December 2021 and in order to ensure that she would not be recommended and appointed, she was pushed to the 4th position to make sure she was not assessed as the best candidate for the position.
7. Mr Riaan van Loggenberg testified under oath to the following effect.
7.1 He was the NAPTOSA observer during the interviews. Mr Tom was a resource person. They were told they could not contract Mrs Myburgh who was a member of the teacher component of the SGB. The chairperson of the SGB had indicated that they could not get hold of her.
7.2 The secretary of the interview panel was a cleaner and he noticed that the resource person, Mr Tom was assisting her.
7.3 The SGB wanted to give someone else the opportunity to act as the principal when considering the applicant’s age and she would be going for an operation. The SGB wanted someone that would be at the school for a longer time and they were concerned about the applicant’s comorbidity.
7.4 Two of the teachers component of the SGB were candidates for the post. When the applicant’s interview started, she indicated that she had to go for surgery and they (panel) were not happy with this. He told the SGB they could not prejudice the applicant because she had to go for an operation. He was under the impression that the SGB had already made a decision before the time who they wanted as their principal. Mrs Myburgh did indicate that she was able to participate in the interviews as a panelist utilising zoom platform.
7.5 As to his observation, he observed as an irregularity that there was no quorum, there was no teachers on the panel and a cleaner took the minutes acting as an secretary. He told them, the panel that they could not discriminate against someone because of age or because that person would be going for an operation. The panel used consensus and indicated that they wanted the incumbent, Mr Mtalana to be appointed in that he was a person that would be able to influence the community. The interview panel appeared to be irritated with the applicant and she was rated fourth. The secretary who took the minutes did not participate in the discussions. He signed the minutes under protest and informed Mr Tom, the resource person that he did not agree with what was going on. He suggested to the panel and enquired from them as it relates to Mrs Myburgh if she could participate utilising zoom. His proposal was rejected.
8. Ms Lee-Ann Myburgh testified under oath to the following effect.
8.1 She represented the teacher component on the SGB and was elected to form part of interview panels. When she returned from maternity leave she stepped down from the SGB in that they were not doing things correctly. Before interview process commenced, Mr Moji phoned her one evening and indicated that they were busy having SGB meeting. He enquired from her whether she was available to participate and form part of the interview panel and she responded that she was prepared. But could only do so on the Friday in that she could get her mother to babysit. He wanted for the interviews to be held on the Wednesday or the Thursday.
8.2 Under cross examination, she confirmed that she was on maternity leave at the time of the interviews and is unaware what happened in the interview process. When enquired by Mr Moji as to what should have happened had there been no teacher available for the interviews, the witness indicated that the interview should have been postponed to another date.
9. Mr Thabo Moji testified under oath to the following effect.
9.1 He is a chairperson of the SGB and the profile terms of the advertisement of the post was that of administration/management. He formed part of the interview panel that appointed the incumbent. The resource person was Mr Tom who brought the applications to the panel. They shifted through the applications of candidates as an interview committee. They chose five candidates to be interviewed, the incumbent and the applicant were part of those shortlisted.
9.2 The profile for the post was done by the Department and the SGB had no say therein. As a panel they decided to use consensus as a manner in selecting a candidate to recommend and should they not be in agreement, they would then rely on scores candidates were awarded. They could not agree as to who to recommend and as a consequence thereto, they utilised scores as a means to recommend a candidate and form a list of preferable candidates.
9.3 Under cross-examination, he confirmed that prior to the interview process he had not met the incumbent and did not know him. In a response to a suggestion that they did not recommend the applicant was because of her age and her disability, this he denied and indicated that the incumbent was recommended due to him achieving the high score. There was a disagreement as to whether to appoint the incumbent or the candidates who received the second highest marks. Special needs was not a requirement for the post. After each candidate was interviewed he asked each candidate if they felt that the interviews were fair and the applicant when asked confirmed that it was fair.
10. Ms Tobeka Mpiyakhe testified under oath to the following effect.
10.1 She is a member of the SGB representing parents and formed part of the interview panel that interviewed the applicant and the incumbent. The panel comprised of three SGB members and they were all trained.
10.2 After they had completed with the interviews and made their recommendation to the SGB, there was no objection from the union observers and after each interview, candidates were asked whether the interviews were fair and all candidates confirmed that they were fair. She attended the year-end function in that she was invited.
10.3 Under cross examination, she indicated that she did not financially contribute to the year-end function. She is unaware that the applicant has a disability. Before the interviews in that they wanted the applicant to attend the interviews they’ve moved the interviews forward in order to accommodate her considering that she would be going for an operation. As it relates to the applicant’s performance during interviews, they were not impressed how she answered questions.
11. Ms Sisanda Ntame testified under oath to the following effect.
11.1 She is employed as a class assistant and she confirms the photographs taken by the applicant were of those attending the year-end function.
11.2 At the commencement of the function, the applicant address the function and welcomed everyone. The party was held in a huge classroom so that they could socially distance.
12. Mr Andile Gcezengana testified under oath to the following effect.
12.1 He attended the interviews as SADTU union observer. At the conclusion of the interviews they all agreed after the interviews with the process was fair and nothing wrong was done. All questions asked of the candidates were the same. At the conclusion of each interview, candidates were given an opportunity to express whether they felt that the interviews were held fairly and they all agreed that the interviews were fair.
12.2 When shown the scorecards, he confirmed that he recognised the scorecards and indicated that they were used in the interview process. The scores cards were shown to them by the by the resource person. He confirms further that the signature on the minutes is that of his and those who attended as panellist the interviews.
12.3 Under cross examination, he conceded that he signed the minutes because he attended the meeting and they did not sign score sheets.
ANALYSIS OF EVIDENCE AND ARGUMENT
13. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
14. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd  8 BALR 834 (CCMA).”
15. As was said in Public Servants Association obo Dalton & Another v Department of Public Works  9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
16. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at  held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) 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.”
17. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others  9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
18. I pause at this juncture to emphasize as an arbitrator in such disputes, my job is not to evaluate each candidate and determine who the best candidate is. That is a job of the interview panel. I’m required to determine whether unfair labour practice was committed when the applicant was not appointed. The proverbial question is whether the applicant was afforded a fair opportunity to compete for the position.
19. The evidence tendered by the applicant concerning occurrences that occurred subsequent to the incumbent’s appointment, such as issues relating to finances of school as well as holding a year-end party at the school premises and alleged wrongdoing by the principal in suggesting and allowing educators to sign the attendance register on 14 and 15 December 2020 as if they were at work, where the contrary allegedly occurred. This evidence although highly prejudicial to incumbent is not relevant. The job of the arbitrator as previously referred to, is not to determine whether in hindsight the decision taken by the employer to appoint a specific person was a good decision or not, after considering conduct that arose subsequent to the appointment. This would mean that the arbitrator would be stepping into the shoes of the employer in addressing alleged misconduct by employees.
20. The applicant is well qualified, experienced and competent educator when it comes to children with special needs. She was headhunted due to her skills as a special needs educator to work at the school. One of the applicant challenges in the appointment of incumbent is that the incumbent did not qualify for the post as advertised. Her evidence related to the alleged inexperience of incumbent to teach special needs children. The problem with this challenge is that the post as advertised identified as a profile, administration skills and management skills and not experience in teaching special needs children. The incumbent prior to his appointed was a deputy principal and therefore had the necessary exposure to managing a school. Furthermore, the post was advertised not as a special needs school neither as full service school and this ultimately nullifies any suggestion concerning the lack of experience and skills in teaching children with special needs. As it relates to the allegation that the applicant was prejudiced due to her age and disability, it is not wrong in my view for the SGB to seek a candidate that would be at the school in the post for a considerable period. Choosing a candidate who would be at the school a lengthy period opposed to 2 years because the candidate will be retiring is a rational reason to be an influencing factor. Furthermore, there’s no evidence that the applicant was prejudiced due to disability. The suggestion that the applicant was awarded a lower score than the incumbent and other 2 candidates was to prejudice her prospects of success in being appointed is not supported by evidence but is a mere assumption.
21. One of the applicant’s challenges was that the interview panel was not properly constituted in that there were no SGB educators forming part of the interview panel. The respondent stance as to procedural fairness was that no evidence was led to prove any prejudice suffered by the applicant or whether there was a causal connection between the alleged unfair conduct and the failure to promote. The respondent stance was there is no causal connection. The respondent further argued that there was no defect or material defect to prove unfair conduct and the evidence proves that the applicant was afforded a fair opportunity to compete for the post.
22. Clause B5.4.2 of PAM provides that the interview committee must comprise one departmental representative (who may be the school principal), as an observer and resource person; the principal of the school (if he or she is not the departmental representative) except in case where he or she is an applicant.; Members of the SGB, excluding educator members who are applicants to the advertised post and one union representative per union that his party to the provincial chamber of the ELRC. The union representatives will be observers to the shortlisting, interviews and the drawing up of preferential list. We know that the EDO, Mr Tom was the resource person at the interviews and the post was for principal and therefore there was no principal to form part of the panel. Together with the resource person the panel comprised of three SGB members who were parents of children at the school. It appears in terms of PAM it is not a specific requirement that the panel must be representative except for the resource person by educators forming part of the SGB.
23. I am therefore satisfied that the applicant was afforded a fair opportunity to compete for the position and at the end of the interviews the SGB ratifying the interview panel’s recommendation recommended the incumbent to be appointed.
24. The respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not appoint the applicant, Erika Wylie.
25. The Applicant is not entitled to any relief.
Name: Jonathan Gruss