Case Number: ELRC 330-20/21 WC
Commissioner: M Reza Slamang
Date of Award: 05 July 2021
In the ARBITRATION between
National Professional Teachers' Organisation of South Africa obo Janine Tharine Prins
Department of Education - Western Cape: Bergsig Primary School
South African Democratic Teachers Union obo Theresa Carol Gelderbloem
Union/Applicant’s representative: Riedwaan Ahmed
Union/Applicant’s address: C/O NAPTOSA
Telephone: (021) 686-8521
First Respondent’s representative: Athné Willemse
Respondent’s address: C/O WCED
Telephone: (021) 467-2852
First Respondent’s representative: Maurice Brinkhuis
Respondent’s address: C/O SADTU
Telephone: 083 634 9212
DETAILS OF HEARING AND REPRESENTATION
1. This is the arbitration award following a contested arbitration. The proceedings commenced on 12 December 2020 and convened on several days thereafter. For reasons of brevity, I do not record all the dates of the proceedings, save to state that the audio-recording and attendance registers of the proceedings will reflect this.
2. Due to the global Covid-19 pandemic and the attendant national lockdown (and restrictions) the proceedings were conducted online, through a Zoom online video conferencing facility which the ELRC facilitated.
3. It must be said that the proceedings were severely impacted upon, inter alia, by witness availability, their access to reliable facilities and since they were remotely located their access to the documentary evidence proved challenging.
4. Poor connectivity largely as a result of unstable internet connectivity, the national power outages – electricity load shedding – also contributed to the proceedings being delayed. These challenges notwithstanding the parties displayed significant preparedness, agility and patience and responded in an exemplary manner albeit more often than not with heightened levels of frustration.
5. The Applicant in this matter is Janine Tharine Prins. She was represented by Riedwaan Ahmed an official with the National Professional Teachers' Organisation of South Africa.
6. The First Respondent is the Department of Education - Western Cape: Bergsig Primary School (WCED). In attendance representing the respondent was Athné Willemse an official employed by the respondent.
7. The Second Respondent in this matter is Theresa Carol Gelderbloem having been duly joined as a party with a substantial interest in the outcome of the proceedings. She was represented by Maurice Brinkhuis an official with the South African Democratic Teachers Union.
8. During the proceedings the parties referred to bundles of documentary evidence, called witnesses, adduced evidence and agreed to file written closing arguments in summation of their respective cases by Monday, 14 June 2021.
9. The proceedings were conducted in English and in Afrikaans and was digitally recorded.
ISSUE IN DISPUTE
10. The issue to be determined is whether the First Respondent had committed any unfair act or omission relating to the promotion of the Applicant, as contemplated by section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended (LRA) and if so, I must determine the appropriate relief.
BACKGROUND TO THE ISSUE IN DISPUTE
12. This dispute concerns allegations of an unfair labour practice relating to a promotion.
13. Post Number 102 a Department Head: Foundation Phase at Bergsig Primary School was advertised by the First Respondent in Vacancy Bulletin 1/2019.
14. The Applicant, Janine Prins, an Educator at Bergsig Primary School presented her candidature to be considered for the post. The Second Respondent, Theresa Gelderbloem who at that time was an Educator at Excelsior Primary School also presented her candidature to be considered for the post.
15. The recruitment and selection (R&S) process followed the ordinary course as required by the Employment of Educators Act 1998 (as amended) [EEA], as well as the applicable policies and procedures of the WCED and collective agreements of the ELRC, including shortlisting and interviews . At the end of the process the R&S panel recorded in its minutes of 11 September 2019 that three of the candidates who were considered met the minimum requirements. The three candidates were ranked as: Theresa Gelderbloem (Second Respondent), Janine Prins (Applicant) and Marlene Gysman.
16. The panel also recorded that prior to each of the three candidates being informed of this outcome, Brandon Griffin, the School Principal, would contact the referees listed on each of their curriculum vitae (CV), ‘… om doodseker te maak dat hulle nog saamstem met hulle verwysing soos uiteengesit op die candidate se CVs.’
17. At this juncture it is important to note that the panel had also recorded in its earlier minutes of 02 September 2019, inter alia, that before a final recommendation is made and to ensure that the recommended candidate is without doubt the right candidate for the position, the School Principal would contact the referees listed in the CVs of each of the candidates.
18. The minutes of a Special School Governing Body (SGB) meeting held on 17 October 2019 documents that the interviews had been completed and that the referees of the respective candidates had been contacted. Arising from the reference checks it became apparent that the first ranked candidate, Theresa Gelderbloem, had a poor attendance record.
19. The SGB minute further recorded that the school has an absenteeism problem and the SGB is desirous of improving this situation. To appoint the Second Respondent may exacerbate the problem of absenteeism at the school.
20. The SGB minute similarly recorded that the second and third ranked candidates were also assessed not to be suitable for the position and as such the SGB resolved not to recommend any of the candidates for appointment.
21. The School Principal was thus authorised to inform the WCED (the appointing authority) that none of the candidates are to be recommended for appointment and that an appointment in the circumstances could not be made. Instead, the SGB requested the WCED to readvertise the vacancy to search for a better suited candidate with a projected appointment to be made with effect from either 01 April 2020 or 01 July 2020.
22. In reasoned correspondence dated 25 October 2019 (signed by the School Principal and Chairperson of the SGB) addressed to the WCED, the SGB informed the appointing authority, inter alia, of its decision not to recommend any of the three candidates for appointment and requested the WCED to readvertise the vacancy.
23. Consequently, the SGB also withheld all the requisite documentation relating to the ‘Recommendation for Appointment as Educator in Advertised Post’ [referred to as a DPE 2 Form] as well as the ‘Nomination for Appointment as Teacher’ [referred to as an A3(E) Form].
24. In further similarly reasoned correspondence dated 02 June 2020 which was signed by the School Principal, the Acting School Principal and Chairperson of the SGB, the SGB reiterated that it declines to recommend any of the candidates for appointment and again requested the WCED to readvertise the vacancy.
25. This time however the WCED insisted that the SGB also send the previously withheld documentation. The SGB duly complied and annotated on the document the word “NO” preceding the title ‘Recommendation for Appointment as Educator in Advertised Post’. In addition, the School Principal highlighted the inscription ‘… does not support the nomination for the following reasons …’ on the ‘Nomination for Appointment as Teacher’.
26. The decision and correspondences of the SGB notwithstanding the appointing authority of the WCED proceeded to appoint Theresa Gelderbloem into the position of Departmental Head: Foundation Phase with effect from 01 October 2020.
27. On 06 November 2020 the Applicant activated the dispute resolution procedures of the ELRC. She takes issue with the appointment of the Second Respondent on the basis that her appointment was irregular as the appointing authority exceeded its statutory authority by making an appointment in the circumstances where the SGB declined to nominate and recommend a candidate for appointment.
28. The applicant noting that the appointment of the Second Respondent is furthermore not in the best interest of the Department of Education and the Learners because she previously had a long career within the WCED and had resigned thus making her ineligible for appointment.
29. In all the premises, the applicant contended that the conduct of the WCED was unfair and amounted to an unfair labour practice. She consequently sought an order that the appointment be set aside as well as an order that the R&S process be restarted from the advertisement stage.
SURVEY OF EVIDENCE AND ARGUMENT
31. While, for purposes of brevity in issuing this award, I do not restate the evidence, submissions and argument in full, I note that I have considered all the evidence, submissions and argument of the parties, but shall only refer to that which I regard as necessary to substantiate my findings and the determination of the dispute.
32. The Applicant contended that it was patently unfair and prejudicial for the WCED not to appoint her into the position as advertised. She based this on the common cause fact that she had been working at the School in the Foundation Phase for approximately 13 years and she had officially occupied the advertised role in an acting capacity for the periods January 2016 to March 2016 and again from 01 April 2019 to September 2019.
33. The Applicant maintained that the advertisement did not specify a specific qualification for appointment but instead specified that substantial experience was needed. The Applicant thus contending that her years of experience qualifies her for appointment and that the failure to appoint her is irrational and arbitrary and amounts to an unfair labour practice. The panel also assessed her as having met all the minimum requirements for the position.
34. The Applicant submitted further that in terms of Chapter 3 of the EEA, an appointment may only be made by the appointing authority on the recommendation of the SGB and since the SGB declined to recommend any of the ranked candidates, an appointment by the WCED, under these circumstances, is ultra vires its statutory powers and is as such invalid.
35. For these reasons the Applicant maintained that the appointment of the Second Respondent - Theresa Gelderbloem - was unfair and amounted to an unfair labour practice. The Applicant consequently sought an order that the appointment be set aside as well as an order that the R&S process be recommenced from the advertisement stage.
36. The First Respondent maintained that the SGB had made a recommendation for appointment which was done in its correspondence dated 02 June 2020, albeit that during September 2020 the SGB sought to recant its recommendation.
37. Since the SGB had failed to submit the requisite recommendation forms, namely the ‘Recommendation for Appointment as Educator in Advertised Post’ as well as the ‘Nomination for Appointment as Teacher’ the WCED made telephonic contact with the principal to discuss their failure to nominate and recommend any of the candidates for appointment. The WCED also addressed an email to the school, whereafter the requisite documents were lodged by the SGB.
38. Although the SGB did not make a recommendation the WCED maintained that either way the appointing authority is entitled to make an appointment. The WCED consulted with the school regarding the reasons given why the Second Respondent – the first ranked candidate - could not be appointed and concluded that because she had previously resigned and allegedly had a chronic absenteeism record that these reasons were insufficient and unreasonable.
39. In any event the WCED noted that her official records had been checked and no record could be found of the Second Respondent having been placed on unpaid leave and, or having a chronic absenteeism and, or having a disciplinary record.
40. The WCED thus concluded that the reasons proffered by the SGB were invalid and proceeded to make an appointment, contending that, in terms of section 6(3)(l) of the EEA, the SGB is obliged to make a recommendation within two months from being requested to make a recommendation, failing which the appointing authority may make an appointment from any of the suitable candidates without such recommendation – this discretion the WCED noted is only subject to section 6(3)(g) of the EEA.
41. The First Respondent contended that in all the premises the appointing authority made an appointment as provided for by section 6 of the EEA. The SGB had ranked in order of preference three candidates which it had assessed to be suitably qualified for appointment – as required by section 6(3)(c) and section 6(3)(f) of the EEA.
42. The first ranked candidate, the Second Respondent, was assessed to be the most suitably qualified candidate and she was as such appointed into the position. The First Respondent accordingly sought a dismissal of all claims by the Applicant.
43. The Second Respondent contended that on 02 June 2020 she was nominated for appointment by the SGB because she met all the requirements for the position. Although she conceded that the SGB is authorised to make a recommendation for appointment, she also contended that the discretion to make an appointment is with the WCED and not the SGB. The Second Respondent also submitted that it is common cause that the appointing authority does not have the authority to make an appoint if the SGB has not made a recommendation for appointment.
44. The Second Respondent furthermore contended through the testimony of Peter Adams (the WCED Resource Person), Annalie Arries (the SADTU representative/observer) and Jacobs Solomons (the deputy chairperson of the SGB, at the time) all of whom were members of the panel, that the correspondences of the SGB dated 25 October 2019 and 02 June 2020 was inaccurate since neither the interview panel nor the SGB had agreed that references were to be contacted prior to the ranked candidates being nominated and recommended for appointment.
45. Their belief is that the assessment of the candidates must be based on information gathered within the R&S process and not based on information obtained outside of the process. Thus, the minutes of the interview panel, where the decision to conduct reference checks, is recorded, the Second Respondent contended was also inaccurate.
46. Similarly, the Second Respondent submitted that the minutes of the Special SGB insofar as it records a decision to not recommend any of the ranked candidates for appointment, was incorrect as this had not been discussed or agreed. The Second Respondent accordingly sought a dismissal of all claims by the Applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
47. Section 186(2) of the LRA defines an ‘unfair labour practice’ as: “any unfair act or omission that arises between an employer and an employee, involving unfair conduct by the employer relating to promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee.”
48. The point of departure in determining this matter is to dispel some of the glaring misnomers that exist.
49. Reference checks which include obtaining input from referees listed in the CV of a candidate is entirely permissible. It is an integral part of modern-day recruitment and selection processes. As such, this integral step is not disallowed by the EEA, the applicable policies and procedures of the WCED and collective agreements of the ELRC. The notion that to contact referees is impermissible is simply incomprehensible and falls to be rejected.
50. In the same vein the testimony of Peter Adams, Annalie Arries and Jacobs Solomons must be rejected. They each persisted that the panel had not agreed that referees were to be contacted and they maintained that to do so is irregular. These witnesses could however not explain the consistent recordal in the minutes that referees would be contacted. What is more, the minute of 02 September 2019 recorded that Jacobs Solomons proposed the approach which was seconded by Mr Cupido.
51. This impasse in their testimony ostensibly resulted in the further contention that the minutes of 02 September 2019 as well as 11 September 2019 was inaccurate insofar as it recorded that the referees would be contacted. Here though the testimony of Peter Adams waivered when it was highlighted that he had co-signed the minutes as being accurate and complete.
52. What is more, Jacobs Solomons could not provide an acceptable explanation for his contradiction of the Special SGB minutes where it is recorded that he seconded the proposal that the SGB would not recommend any of the candidates for appointment and instead request the WCED to readvertise the position.
53. It must also be noted that a recruitment and selection panel which is set up to conduct the process of identifying the most suitably qualified candidate is distinct from the SGB, even though some of its members may overlap. The panel does not remove the duties, functions and powers of the SGB.
54. In the recruitment and selection process and in performing its duties and functions the panel, inter alia, will assess and rank the three most suitably qualified candidates. The panel is not empowered to recommend to the appointing authority a candidate to be appointment, as this is the domain of the SGB. An assessment and ranking of the candidates by the panel does not equate to a recommendation for appointment. This notion also falls to be rejected.
55. Did the SGB make a recommendation for appointment?
56. The Second Respondent contended that the SGB did make a recommendation for appointment. I do not agree. The Second Respondent labours under the belief that the assessment and ranking of the candidates by the panel equates to a recommendation for appointment. I have held hereinabove that this is incorrect.
57. On the other hand, the First Respondent acknowledged that the SGB did not make a recommendation for appointment. The First Respondent maintained that the appointing authority is entitled to make an appointment despite the failure to recommend by the SGB. I am constrained to disagree with this contention.
58. On the evidenced facts in this matter, it cannot be disputed that the SGB declined to recommend any of the candidates for appointment, this much is clearly established by the correspondences dated 25 October 2019 and 02 June 2020.
59. The intention of the SGB is furthermore amplified by the ‘Recommendation for Appointment as Educator in Advertised Post’ as well as the ‘Nomination for Appointment as Teacher’ forms being withheld and when the SGB was prompted by the WCED to lodge the forms, the inscriptions thereon remove all doubt. The SGB did not make a recommendation for appointment.
60. In terms of paragraph F:35 of Annexure A of the ELRC Guidelines: Promotion Arbitration a recommendation by the SGB is an essential prerequisite for the appointing authority to make an appointment. An appointment that is made without a recommendation by the SGB is ultra vires and unlawful.
61. The Supreme Court of Appeal , per Brand JA held that in the absence of a recommendation by the SGB, the appointing authority is not authorised by the empowering provision to make an appointment. In the result the appointment of Theresa Gelderbloem into the position of Departmental Head: Foundation Phase falls to be set aside.
62. The SGB had consistently requested the WCED to readvertise the position. There is no basis on which this request may be denied. On the contrary a readvertisement is required to enable the SGB the opportunity to perform its function, inter alia, to make a recommendation as provided for by the empowering provisions.
63. The First Respondent, Department of Education – Western Cape, committed an unfair labour practice, as contemplated by section 186(2)(a) of the LRA relating to the promotion and, or the appointment of the Applicant, Janine Tharine Prins.
64. The appointment of the Second Respondent, Theresa Gelderbloem, into the position of Departmental Head: Foundation Phase, is hereby set aside.
65. The First Respondent is directed to re-advertise the post and to repeat the recruitment and selection process from the advertisement stage.
M Reza Slamang