ELRC872-19/20EC
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Award Date:
24 June 2021
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Case Number: ELRC872-19/20EC
Panelist: Hadley Saayman
Date of Award: 24 June 2021
In the ARBITRATION between
SADTU obo B F Gayoyo
(Applicant)
And
Department of Education – Eastern Cape
(1st Respondent)
X Kweleta
(2nd Respondent)
Cenyu Public School SGB
(3rd Respondent)
Applicant’s representative: Mr T J Mncotsho
Applicant’s address: SADTU
No.37 Belgravia Cresent
East London
5200
Telephone: 043 7437 535
Telefax: 086 521 9293
E-mail: thembile.mncotsho@yahoo.com
1st Respondent’s representative: Mr A Buyana
2nd Respondent’s representative: Mr L Tini
3rd Respondent’s representative: Mr S Kostile
Respondent’s address: Department of Education -EC
Private Bag X 0032
Bisho
5605
Telephone: 040 608 4064
Telefax: 040 608 4433
E-mail: Asaduma.buyana@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 186(2)(a) of the Labour Relations Act (LRA) for 26 and 27 May 2021. The Applicant, Ms B F Gayoyo was represented by Mr T J Mncotsho a Union official of SADTU, and the 1st Respondent, the Department of Basic Education-EC was represented by Mr A Buyana, an Assistant Director: Labour Relations. The 2nd Respondent and Incumbent, Ms X Kweleta was represented by Mr L Tini, a Union official of SAWPSWU and the 3rd Respondent, the SGB of Cenyu Public School was represented by Mr S Kostile.
ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as contemplated by Section 186(2)(a) of the LRA.
BACKGROUND TO THE ISSUES
3. The Applicant is currently a Head of Department (Intermediate & Senior Phase) at Cenyu Public School. The Applicant applied for the vacant position of Deputy Principal at Cenyu Public School, which was advertised in Bulletin-Volume 6 of 2019. The Applicant was shortlisted and interviewed. The Applicant was ranked number 3 on the recommendation form by the interview panel. The 2nd Respondent, Ms X Kweleta was ranked number 1 and appointed as Deputy Principal.
4. Regarding relief, the Applicant seeks the setting aside of the appointment of the 2nd Respondent and
that she should be appointed.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant, Ms B Gayoyo testified that she specialised in Maths and English. When the staff had a profiling meeting on 18 July 2019 for the vacancy of Deputy Principal, it was proposed that the incumbent should be able to teach Maths. She is teaching Maths for about 28 years. She is also the phase-head. She is empowered to deal with the curriculum, which is a duty of a Deputy-Principal. She also qualified for the post as Deputy-Principal. She was surprised that the 2nd Respondent, Ms Kweleta was appointed as Deputy-Principal, because she is a foundation phase educator and is currently teaching Grade 1. The incumbent was supposed to teach in the Inter-Sen phase. The need of the school was someone who could teach Grade 7 Maths. The incumbent cannot teach grade 7 and has no experience in the Inter-Sen phase. The Inter-Sen teachers would have to do the job of the incumbent. The School Principal was highly influential as the resource person and therefore biased. The shortlisting criteria document on page 18 in Bundle “A” was the School Principal’s handwriting, instead of that of the secretary. She scored a 5 in subject experience, whilst the other five candidates scored a 3. The chairperson did not sign the scoresheets and it was not dated. The date on the attendance register for the profiling staff meeting stated 18 July 2018, which is incorrect. The SACE certificate of the incumbent was not certified. Her score by the panelist on page 6 of “B1” should have been 18 instead of 17. She would have a total score of 72.
7. The Applicant called Ms N Fani, the SADTU observer, during the shortlisting and interview process. Ms Fani testified that the secretary of the panel, during the shortlisting process, proposed that the candidates should be from the intermediate phase and be able to teach Maths and English. The Principal suggested that all candidates should be shortlisted, irrespective of the phase. The interviews started late, because the panel noticed that the questions were prepared by the Principal and the panel then drafted their own new questions. After the interview process the scores were calculated and the final total scores of the candidates were as follows: Ms Gayoyo scored 71, Ms Kweleta scored 82 and Mr Roji scored 72.
Ms Kweleta was ranked number 1, Mr Roji number 2 and Ms Gayoyo number 3.
RESPONDENT’S EVIDENCE
8. Ms X Kweleta, the 2nd respondent and incumbent testified. She testified that she applied for the vacancy as Deputy-Principal of Cenyu Public School, because she qualified for the post. During the profiling meeting of the staff, candidates from all phases and who offered Maths and English would
be considered. The vacancy was advertised in an open bulletin for Deputy-Principals and HODs. She is qualified in Maths and English as well as management. She was the HOD of the foundation phase at the same school and is currently teaching Maths for Grade 1.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Both parties were granted an opportunity to submit written closing arguments, which I have considered.
10. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: ( 2) “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 provi-sion of benefits to an employee;…
11. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
12. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the Act LRA.
13. The Applicant submitted that the staff during the profiling meeting proposed that only candidates from the Inter-Sen phase should be considered for the vacancy as of Deputy- Principal. However, the minutes on Page 9 of bundle “A” stated that candidates should offer Maths and English with manage-ment and administration, irrespective of the phase, should be advertised.
14. The Applicant argued that, if the calculation of the scores were properly checked and verified, she would have scored 72 and had a tie with the candidate that was ranked second. It therefore clear that the applicant did not submit that she should have been ranked number one and therefore the best can-didate for the vacancy.
15. It was common cause that the Incumbent met the requirements for the vacancy and scored 82 as re-flected in the interview minutes on Page 3 of bundle “B”. The incumbent was therefore ranked the number one candidate. The last-mentioned minutes was confirmed by the applicant’s witness, Ms Fani the SADTU observer, as a true reflection of what transpired during the process. In fact, Ms Fani never reported or declared any irregularities during the proceedings.
16. The Applicant further submitted that the incumbent should not have been shortlisted, because her SACE certificate was not certified. The incumbent testified that she was duly registered with SACE and only noticed now in the arbitration hearing that the certificate in the bundle was not certified, which was not disputed.
17. The Applicant did not submit or argue that the incorrect dates on the attendance register of the profiling minutes of the staff or the different handwritings prejudiced her in any way. It was common cause that the applicant did not dispute the authenticity of any documents as per the duly signed pre-arbitration meeting minutes.
18. It was common cause that the incumbent was an HOD for a longer period than the applicant and had more years of experience in management and administration than the applicant.
19. The aim and duties of a Deputy Principal as outlined in the Personnel Administrative Measures (PAM) 2016, is to assist the Principal in managing the school and promoting the education of learners in a proper manner and to maintain total awareness of the administrative procedures across the total range of school activities and functions, which the incumbent testified she is competent in ful-filling.
20. The Applicant did not provide any constructive or substantive evidence of biasness by the resource person. The Applicant’s claim that the SGB panel was not trained was disputed by the 3rd Respondent.
21. The Labour Appeal Court considered the balance that must be struck between the managerial pre-rogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour fo-rums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted.
22. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to pro-motion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. 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.
23. Having considered the evidence in its totality, I am convinced that the 1st Respondent has granted the Applicant a fair opportunity in presenting her candidature for the vacancy and that the Applicant failed to discharge the onus to proof that the 1st Respondent committed an unfair labour practice as envis-aged by Section 186(2)(a) of the LRA.
24. I therefore find that the Applicant is not entitled to the relief sought.
AWARD
25. The1st Respondent, the Department of Education-Eastern Cape, did not commit an unfair labour practice as contemplated by Section 186(2)(a) of the LRA.
26. The Applicant, Ms B Gayoyo is not entitled to the relief sought.
Signature:
Commissioner: Hadley Saayman
Sector: Education
Panelist: Hadley Saayman
Date of Award: 24 June 2021
In the ARBITRATION between
SADTU obo B F Gayoyo
(Applicant)
And
Department of Education – Eastern Cape
(1st Respondent)
X Kweleta
(2nd Respondent)
Cenyu Public School SGB
(3rd Respondent)
Applicant’s representative: Mr T J Mncotsho
Applicant’s address: SADTU
No.37 Belgravia Cresent
East London
5200
Telephone: 043 7437 535
Telefax: 086 521 9293
E-mail: thembile.mncotsho@yahoo.com
1st Respondent’s representative: Mr A Buyana
2nd Respondent’s representative: Mr L Tini
3rd Respondent’s representative: Mr S Kostile
Respondent’s address: Department of Education -EC
Private Bag X 0032
Bisho
5605
Telephone: 040 608 4064
Telefax: 040 608 4433
E-mail: Asaduma.buyana@ecdoe.gov.za
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration in terms of section 186(2)(a) of the Labour Relations Act (LRA) for 26 and 27 May 2021. The Applicant, Ms B F Gayoyo was represented by Mr T J Mncotsho a Union official of SADTU, and the 1st Respondent, the Department of Basic Education-EC was represented by Mr A Buyana, an Assistant Director: Labour Relations. The 2nd Respondent and Incumbent, Ms X Kweleta was represented by Mr L Tini, a Union official of SAWPSWU and the 3rd Respondent, the SGB of Cenyu Public School was represented by Mr S Kostile.
ISSUE TO BE DECIDED
2. I am required to determine whether the 1st respondent committed an unfair labour practice as contemplated by Section 186(2)(a) of the LRA.
BACKGROUND TO THE ISSUES
3. The Applicant is currently a Head of Department (Intermediate & Senior Phase) at Cenyu Public School. The Applicant applied for the vacant position of Deputy Principal at Cenyu Public School, which was advertised in Bulletin-Volume 6 of 2019. The Applicant was shortlisted and interviewed. The Applicant was ranked number 3 on the recommendation form by the interview panel. The 2nd Respondent, Ms X Kweleta was ranked number 1 and appointed as Deputy Principal.
4. Regarding relief, the Applicant seeks the setting aside of the appointment of the 2nd Respondent and
that she should be appointed.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a summary of evidence considered, as provided for in terms of Section 138(7)(a) of the
Labour Relations Act 66 of 1995 (LRA), relevant to the dispute at hand.
APPLICANT’S EVIDENCE
6. The Applicant, Ms B Gayoyo testified that she specialised in Maths and English. When the staff had a profiling meeting on 18 July 2019 for the vacancy of Deputy Principal, it was proposed that the incumbent should be able to teach Maths. She is teaching Maths for about 28 years. She is also the phase-head. She is empowered to deal with the curriculum, which is a duty of a Deputy-Principal. She also qualified for the post as Deputy-Principal. She was surprised that the 2nd Respondent, Ms Kweleta was appointed as Deputy-Principal, because she is a foundation phase educator and is currently teaching Grade 1. The incumbent was supposed to teach in the Inter-Sen phase. The need of the school was someone who could teach Grade 7 Maths. The incumbent cannot teach grade 7 and has no experience in the Inter-Sen phase. The Inter-Sen teachers would have to do the job of the incumbent. The School Principal was highly influential as the resource person and therefore biased. The shortlisting criteria document on page 18 in Bundle “A” was the School Principal’s handwriting, instead of that of the secretary. She scored a 5 in subject experience, whilst the other five candidates scored a 3. The chairperson did not sign the scoresheets and it was not dated. The date on the attendance register for the profiling staff meeting stated 18 July 2018, which is incorrect. The SACE certificate of the incumbent was not certified. Her score by the panelist on page 6 of “B1” should have been 18 instead of 17. She would have a total score of 72.
7. The Applicant called Ms N Fani, the SADTU observer, during the shortlisting and interview process. Ms Fani testified that the secretary of the panel, during the shortlisting process, proposed that the candidates should be from the intermediate phase and be able to teach Maths and English. The Principal suggested that all candidates should be shortlisted, irrespective of the phase. The interviews started late, because the panel noticed that the questions were prepared by the Principal and the panel then drafted their own new questions. After the interview process the scores were calculated and the final total scores of the candidates were as follows: Ms Gayoyo scored 71, Ms Kweleta scored 82 and Mr Roji scored 72.
Ms Kweleta was ranked number 1, Mr Roji number 2 and Ms Gayoyo number 3.
RESPONDENT’S EVIDENCE
8. Ms X Kweleta, the 2nd respondent and incumbent testified. She testified that she applied for the vacancy as Deputy-Principal of Cenyu Public School, because she qualified for the post. During the profiling meeting of the staff, candidates from all phases and who offered Maths and English would
be considered. The vacancy was advertised in an open bulletin for Deputy-Principals and HODs. She is qualified in Maths and English as well as management. She was the HOD of the foundation phase at the same school and is currently teaching Maths for Grade 1.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. Both parties were granted an opportunity to submit written closing arguments, which I have considered.
10. Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia: ( 2) “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 provi-sion of benefits to an employee;…
11. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the ele-ments of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
12. Fairness requires that the position and interests of both the employee and employer are taken into ac-count in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper re-gard to the objectives sought to be achieved by the Act LRA.
13. The Applicant submitted that the staff during the profiling meeting proposed that only candidates from the Inter-Sen phase should be considered for the vacancy as of Deputy- Principal. However, the minutes on Page 9 of bundle “A” stated that candidates should offer Maths and English with manage-ment and administration, irrespective of the phase, should be advertised.
14. The Applicant argued that, if the calculation of the scores were properly checked and verified, she would have scored 72 and had a tie with the candidate that was ranked second. It therefore clear that the applicant did not submit that she should have been ranked number one and therefore the best can-didate for the vacancy.
15. It was common cause that the Incumbent met the requirements for the vacancy and scored 82 as re-flected in the interview minutes on Page 3 of bundle “B”. The incumbent was therefore ranked the number one candidate. The last-mentioned minutes was confirmed by the applicant’s witness, Ms Fani the SADTU observer, as a true reflection of what transpired during the process. In fact, Ms Fani never reported or declared any irregularities during the proceedings.
16. The Applicant further submitted that the incumbent should not have been shortlisted, because her SACE certificate was not certified. The incumbent testified that she was duly registered with SACE and only noticed now in the arbitration hearing that the certificate in the bundle was not certified, which was not disputed.
17. The Applicant did not submit or argue that the incorrect dates on the attendance register of the profiling minutes of the staff or the different handwritings prejudiced her in any way. It was common cause that the applicant did not dispute the authenticity of any documents as per the duly signed pre-arbitration meeting minutes.
18. It was common cause that the incumbent was an HOD for a longer period than the applicant and had more years of experience in management and administration than the applicant.
19. The aim and duties of a Deputy Principal as outlined in the Personnel Administrative Measures (PAM) 2016, is to assist the Principal in managing the school and promoting the education of learners in a proper manner and to maintain total awareness of the administrative procedures across the total range of school activities and functions, which the incumbent testified she is competent in ful-filling.
20. The Applicant did not provide any constructive or substantive evidence of biasness by the resource person. The Applicant’s claim that the SGB panel was not trained was disputed by the 3rd Respondent.
21. The Labour Appeal Court considered the balance that must be struck between the managerial pre-rogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour fo-rums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted.
22. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to pro-motion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. 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.
23. Having considered the evidence in its totality, I am convinced that the 1st Respondent has granted the Applicant a fair opportunity in presenting her candidature for the vacancy and that the Applicant failed to discharge the onus to proof that the 1st Respondent committed an unfair labour practice as envis-aged by Section 186(2)(a) of the LRA.
24. I therefore find that the Applicant is not entitled to the relief sought.
AWARD
25. The1st Respondent, the Department of Education-Eastern Cape, did not commit an unfair labour practice as contemplated by Section 186(2)(a) of the LRA.
26. The Applicant, Ms B Gayoyo is not entitled to the relief sought.
Signature:
Commissioner: Hadley Saayman
Sector: Education
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ELRC 302 -20 /21 NW
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