In the arbitration between
A J MBATANI 1ST APPLICANT
Z J THAMBO 2ND APPLICANT
DEPARTMENT OF EDUCATION EC 1ST RESPONDENT
T STOKWE 2ND RESPONDENT
G JACOBS 3RD RESPONDENT
N NTANGA 4TH RESPONDENT
Employees’ representative: Adv L Voultsos instructed by MMH Attorneys
Employer’s representative: Mr S Louw of the DOE
INTRODUCTION AND REPRESENTATION
1. The matter was set down for an arbitration hearing on 25 August 2020, 1 and 2 October 2020, 23 February 2021, 24 and 25 March 2021, 19 April 2021. The hearings were conducted at Uitenhage and via zoom.
2. The Applicants in the matter, Mr Thambo and Mr Mbatani were represented by Adv. L Voultsos instructed by MMH Attorneys. The 1st Respondent was represented by Mr S Louw. The 2nd, 3rd and 4th Respondents were joined to the proceedings and given an opportunity to cross-examine the Applicants and to give evidence.
3. The Applicants referred an alleged unfair labour practice dispute relating to promotion to the ELRC on 10 September 2019. The Applicants alleged that the First Respondent committed an unfair labour practice by failing to appoint and promote them to the positions of Education Development Officer (“EDO”) as advertised. (the EDO positions are also referred to as Circuit Manager positions)
4. The Applicants are seeking retrospective appointments to the posts currently occupied by the 2nd, 3rd and 4th Respondents. (Ms T Stokwe, Mr G Jacobs, Ms N Ntanga)
5. Both parties filed documents which are marked Bundle A, B , C1 and C2.
6. The parties submitted written heads of argument on 29 April 2021.
ISSUES TO BE DECIDED
7. Whether the First Respondent committed an unfair labour practice relating to promotion as defined in Section 186 (2) (a) of the LRA, 1995 as amended against the First and Second Applicants.
BACKGROUND TO THE DISPUTE
8. On 22 February 2019 3 EDO posts were advertised in the Sara Baartman District (“SBD”) in the Eastern Cape.
THE ADVERTISEMENT – BUNDLE “A” page 16
• A recognized RVQ13 qualification in the education profession, which includes a minimum of 8 years teaching experience.
• Registration with SACE as professional educator
• 5 years minimum management experience as a principal of a top performing school.
• Hands-on experience and knowledge of teacher development and curriculum policy implementation practices
• A sound knowledge of the national curriculum and assessment policy statements and topical curriculum transformation issues
• Proven experience of leading and coordinating school’s improvement projects
• Ability to work independently as well as in a team
• Good communication skills (written & verbal)
• Computer skills with excellent knowledge of Microsoft packages
• A valid driving license.
9. During February 2019, Mr Thambo, Mr Mbatani, Ms Stokwe, Mr Jacobs and Ms Ntanga applied for the EDO positions for the SBD.
10. The interviews were conducted in ELS on 15 April 2019.
11. Mr Jacobs, Ms Stokwe and Ms Ntanga were appointed to the positions.
12. The Applicants main arguments were that:
• They met the minimum requirements of the post.
• They were the best candidates for the post.
• Jacobs, Stokwe and Ntanga did not meet the minimum requirements of the post and were not the best candidates for the post; and
• The decision by the DOE not to promote the Applicants was irrational, arbitrary, unfair and unreasonable taking into account all relevant circumstances.
• Other arguments raised by the Applicants were that the panel erred by using only scoring to determine who the best candidate was for the post, that it was unfair to change the constitution of the selection panel, that it was unfair to change the venue for the interview from Graaff Reinet to East London, that it was unfair to change the time that they were interviewed by an hour earlier than scheduled. In order not to burden the award with the multitude of complaints that the Applicants had regarding the proceedings I will deal with these issues under a separate heading in my analysis of the evidence and argument.
13. Mr Z J Thambo (‘Thambo”) testified that he was employed as the principal of A.V. Bukani Primary School since 2000. On 27 August 2018 Thambo was appointed as an Acting EDO until 1 July 2019.
Thambo gave the following reasons why he was of the view that Jacobs, Stokwe and Ntanga did not qualify for the EDO positions:
• Ms Ntanga did not meet the minimum requirements of the post for the following reasons: Whilst Ms Ntanga was a principal prior to 2007 she was a principal of a small farm school which was not a performing school as contemplated by the relevant criteria. He said he was more experienced than Ms Ntanga in that he had gained experience from a variety of different schools from large to small and rural to urban. He furthermore indicated that such experience was crucial in assisting an EDO to perform her/his functions and to deal with a variety of different issues particular to the size of a school.
• Mr Jacobs did not meet the minimum requirements of the post for the following reasons: Mr Jacobs had never been a principal of a school.
• Ms Stokwe did not meet the requirements of the post for the following reasons: Whilst she was a principal, she was not a principal of a top performing school. The Applicants tendered a document headed “list of underperforming schools” wherein Ms Stokwe’s school; Nkululeko Secondary School, was listed as an under-performing school.
• Thambo said he was the principal of a top performing school for 20 years and complied in all respects with the requirements for the position as per the advertisement in addition to his Acting EDO position.
14. Mr A J M Mbatani (“Mbatani”) testified that he had been the principal at Makukhanye Primary School, which he said was a top performing school, from 2014. He was appointed as an Acting EDO from 27 August 2018 until 1 July 2019. Mbatani raised the same issues as those raised by Thambo as to why the selection process was unfair.
During cross-examination Jacobs (3rd Respondent) put it to Mbatani that he was not the best candidate and that he would never have been shortlisted if he was not an Acting EDO. He provided several reasons why he was of the opinion that Mbatani was not the principal of a best performing school. It is common cause that Mbatani reported to Jacobs prior to his appointment as Acting EDO.
15. Mr P Jack (”Jack”), who was the chairperson of the selection panel testified as follows:
• The advertisement attracted 99 applications and 12 candidates were shortlisted. Thambo and Mbatani were jointly scored 9th on the list of preferred candidates.
• Jack said that all candidates were placed into 2 categories, namely:
1) If a candidate was an Acting EDO they were shortlisted in terms of Paragraph B5.6.7 of the PAM and the criteria of the minimum requirements for the positon in terms of paragraph B 188.8.131.52 of the PAM was applicable to them. (Thambo, Mbatini, Jacobs and Ntando fell into this category)
2) In terms of the remaining candidates they had to comply with the minimum requirements of the advertisement. (Ms Stokwe fell into this category)
• During cross-examination Mr Jack was referred to the minutes of the shortlisting committee held on 4 April 2019 which states as follows: (page 42 of Bundle A)
SELECTION CRITERIA ACCORDING TO ADVERT
A recognized RVQ13 qualification in the education profession, which include a minimum of 8 years teaching experience
Registered with SACE
5 years minimum management experience of a top performing school
Valid driver’s license
ADDITIONAL CRITERIA 1
Applicants that are in an acting position as Educational Development Office and that meets the minimum requirements of the posts.
ADDITONAL CRITERIA 2
Principals of top performing school (panel made use of the Data Driven District-system, the National Senior Certificate Technical report for 2018 and the size of the school to determine top performing schools).”
• Mr Jack testified that the criteria referred to in the minutes under Additional 1 was applicable to the Acting EDO candidates only and refers to the minimum requirements in terms paragraph B.3.2.1 of the PAM (which stipulates the minimum requirements for appointment with regard to educational qualifications, statutory requirements, and experiential requirements for office based educators ). In terms of paragraph B.184.108.40.206 the inherent requirements for the position of Deputy Chief Education Specialist (DCES) which is equivalent in rank to the EDO position is a recognised RVQ13 qualification, registration with SACE and a minimum of 8 years teaching experience. (the parties agreed that the positon of a DCES is equivalent to an EDO position).
• Jack said that the criteria referred to under Additional 2 were applicable to the remainder of the candidates and refers to the minimum requirements in terms of the advertisement.
• During cross-examination it was put to Jack that Stokwe was not from a top performing school and that the school she taught at was in fact an underperforming school. Jack was referred to a document (page 140 Bundle B) which indicates that the outcome for Nkululeko Public Secondary School, the school Stokwe taught at in 2018 was 53%. Jack responded that the criteria under “Additional Criteria 2” of the shortlisting minutes was not the criteria used by the selection panel to determine whether a school was a top performing school He referred to a document titled Circular D2/2017 dated 25 November 2017 (Annexure C) which sets out the criteria to identify underperforming schools. He said that in terms of the circular Stokwe’s school was not an underperforming school. Jack also referred to an unsigned performance result for Ms Stokwe indicating the results for Nkululeko High School for the period 2016 – 2018. (Annexure C1). He said the panel took an average of the past 3 years to determine whether her school scored above 65 percent and that Stokwe’s average over 3 years was 64.7%. In terms of the circular a secondary school would be an underperforming school if the school scored below 65% over a 3 year period. Jack said the 64.7% was rounded off to 65%. He said the panel furthermore took into consideration equity considerations, specifically gender parity, when deciding to appoint Stokwe.
16. Mr M G Jacobs (“Jacobs”) gave the following evidence.
• He was scored the best candidate out of the 12 candidates and had been an Acting EDO for 3 years prior to his appointment as EDO.
• He said he had been an educator for 30 years.
• He had never been the principal of a school.
• It is common cause that Jacobs was the Circuit Manager to whom Mbatani reported prior to his appointment as Acting EDO. Jacobs said that as Mbatani’s supervisor he knew that Mbatani’s school was not the best performing school on the circuit.
• Jacobs said that although Mbatani’s school had not been formally evaluated because it was a primary school it was definitely not the best performing school on the circuit. He testified about many problems that he had encountered with the school relating to Admin and Management.
• Jacobs said that Thambo was from a top performing school.
17. Ms N C Ntanga (“Ntanga”) testified that she was an Acting EDO for more than 16 months. She said she started working as a teacher 30 years ago. She was the principal of a farm school for 10 years. She said she left the farm school in 2007 already. The past 11 years she was a Senior Education Specialist. (SES) She said that in terms of her career progression her next step would be that of an EDO. She denied that a SES post was equivalent to that of a deputy principal.
18. Ms Stokwe did not testify.
ARGUMENTS PRESENTED BY THE PARTIES
19. The Applicants’ argument
It was the Applicant’s argument that the PAM cannot be interpreted on a piecemeal basis but must be considered as a whole and together with the Recruitment Policy of the First Respondent. The fact that a candidate is shortlisted on the basis of PAM does not automatically mean that a candidate meets the minimum requirements for the post, all that it means is that the candidate is shortlisted. Should the Department have intended to apply the requirements as stipulated in the PAM to the post in question it was incumbent on the Department to ensure that those requirements were clearly and unequivocally communicated to the public in the relevant advertisement. The Department’s argument is that it is entitled to disavow reliance on the minimum requirements as set out in the advert on the basis that it can rely on the provisions of the PAM. This is inherently unfair because it results in a unilateral adjusting of the minimum requirements communicated to all the candidates and the public at large. In any event the PAM stipulates that the advertisement must include the minimum requirements of the post advertised and all applications must meet the minimum requirements of the advertisement.
20. The Respondent’s argument
The DOE’s argument is that Thambo, Mbatani , Jacobs and Ntanga were automatically shortlisted for the EDO positions in terms of paragraph B.5.6.7 of the PAM and that the minimum requirements in terms of paragraph B.220.127.116.11 of the PAM was applicable to them. The criteria relating to “5 years minimum management experience as a Principal of a top performing school” was not applicable to the Acting EDO’s.
The remainder of the contestants had to comply with the minimum requirements in terms of the advertisement. ( Ms Stokwe would fall in this category).
ANALYSIS OF EVIDENCE AND ARGUMENTS
21. After a consideration of the evidence, the arguments presented on behalf of both parties, and having regard to the advert, the PAM, the First Respondent’s Recruitment Policy, the minutes of the shortlisting meeting and relevant case law, I concluded that the First Respondent committed an unfair labour practice against the Applicants by failing to take into consideration the minimum requirements for the position of EDO as set out in the advertisement when assessing the candidates for the EDO positions. More specifically, the First Respondent erred by failing to take into consideration whether all the candidates complied with the minimum requirement of “5 years minimum management experience as a Principal of a top performing school” which is one of the criteria in terms of the advertisement. My reasons are as follows:
21.1 The minimum requirements for the EDO position
The PAM and the advert sets out the minimum requirements for the position. The problem is that the minimum requirements in terms Paragraph B.18.104.22.168 of the PAM are not the same as the minimum requirements in terms of the advert.
The provisions of the PAM
o Paragraph B5.6.7 of the PAM states as follows: (page 98 of the PAM)
“The list of short-listed candidates for interview purposes should not exceed five per post. An educator who has been acting in the advertised post for 12 months or more and has applied for the post, must be shortlisted.”
o Paragraph B.3.2.1 of the PAM sets out the minimum requirements for office based educators. (page 52 of the PAM)
o Paragraph B.22.214.171.124 of the PAM (Page 55 of the PAM) sets out the minimum requirement for the position of an EDO . For purposes of this arbitration hearing the main difference between the minimum requirement in terms of paragraph B.126.96.36.199 of the PAM and the advertisement is the criteria relating to the “5 years minimum management experience as Principal of a top performing school”.
o Paragraph B.5.2.1 and B.188.8.131.52 of the PAM sets out the requirements for the advertisements of educator posts as follows: (page 94 of the PAM)
“B.5.2.1 The advertisement of vacant posts for educators must:
B.184.108.40.206 Be self-explanatory and clear and must include:-
o Paragraph B.5.6 of the PAM sets out the requirements in relation to shortlisting for office-based educator posts. (page 97 of the PAM) Paragraph B.5.6.4 requires that:
“All applications that meet the minimum requirements and provisions of the advertisement must be handed to the responsible Interview Committee.”
21.2 The provisions of the First Respondent’s Recruitment and Selection Policy supports the Applicants’ argument that all candidates must comply with the minimum requirements of the advert. The relevant paragraphs are the following: (Bundle A pages 73 - 102)
• With reference to the shortlisting the policy stipulates as follows: (page 85 section VIII)
“ d. No person will be shortlisted solely on the basis of him/her acting in the posts”
• The policy furthermore stipulates that the chairperson of the panel is responsible: (page 90 paragraph 3.1 item 6)
“6. Ensuring that all criteria utilized during the shortlisting and interview process are in line with the advertisement and the inherent requirements of the post.”
21.3 The crisp question is therefore whether all the applicants for the position of EDO, including the Acting EDO’s were compelled to comply with the minimum requirements of the advert or not.
21.4 In my view the minimum criteria in terms of paragraph B.220.127.116.11 is qualified by the minimum requirements in terms of the advert. Paragraph B.18.104.22.168 in my view does not prevent the Department from determining a higher threshold, as they did when they advertised the positions of EDO, namely the requirement that the successful candidate had to, in addition to the minimum requirements as per Paragraph B.22.214.171.124 of the PAM, also have 5 years minimum management experience as a Principal of a top performing school.
21.5 It would be unfair to use two sets of criteria when determining the best candidates for the EDO positions, one set applicable to Acting EDO’s, and another set applicable to those who were not Acting EDO’s. I concluded that fairness dictates that all the candidates (including the Acting EDO’s) had to be assessed taking into consideration the minimum requirements of the job as set out in the advertisement.
21.6 I noticed that the shortlisting minutes incorrectly reflect the minimum criteria of the advertisement as follows: “5 years minimum management experience of a top performing school”. That is not what the advertisement states. The advertisement states as follows: “5 years management experience as a Principal of a top performing school.”
21.7 It has also not escaped my attention that it is questionable whether Mr Thambo and Mr Mbatani qualified to be shortlisted in terms of Paragraph B.5.6.7 of the PAM as they had not been acting in the positons of EDO for 12 months or more when they applied for the EDO positions (August 2018 – April 2019 when the interviews were conducted) and should therefore have been subjected (on the Respondent’s version) to the minimum requirements in terms of the advert which did not happen.
21.8 Legal principles applicable to minimum requirements for a position
In Khumalo and Another v MEC for Education, Kwazulu-Natal 2014 (5) SA 579 (CC) the Constitutional Court found as follows:
(62)…Fairness in employment practices and labour relations require the state to be even-handed and transparent not only to those whom it employs, but so too to those who may wish to apply for employment at a state institution. It would not be fair if the state were to employ persons who do not meet the very requirements that the state itself sets. It is neither fair nor in compliance with the dictates of transparency and accountability for the state to mislead applicants and the public about the criteria it intends to use to fill a post.”
21.9 The criteria to determine how to assess a top performing school
I am not convinced that the criteria for determining the best performing school was adequately explained by Mr Jack. I found Mr Jack’s explanation regarding the criteria used by the panel to measure a top performing school rather confusing. The criteria in terms of the official minutes of the shortlisting committee were as follows: Data Driven District-system, the National Senior Certificate Technical report for 2018 and the size of the school. According to Mr Jack the panel did not use the criteria as is reflected in the minutes. Instead the method used was to take into consideration the average of a school’s performance over the last three years. Upon a perusal of Circular C it appears that the Circular only clarifies what would be classified as an underperforming school, not what would be classified as a top performing school. It is crucial to the assessment of the applicants for a position to clarify exactly what criteria to use in order to determine who qualifies as principals of top performing schools. I am also not convinced that it was correct to “round of” Ms Stokwe’s 64.7% to 65% and therefore elevate her score from an underperforming school to a performing school. It was also unclear how primary schools are assessed for performance as compared with secondary schools. In regard to the assessment of primary schools different modules were suggested by the First Respondent initially, namely DDD and a method referred to as “umalusi’. Mr Jack however testified that Circular C was used by the panel to assess the performance of schools. I noticed that Circular C has different methods to assess Primary and Secondary Schools and that Primary schools do not have the 65 percent percentage to identify it as an underperforming school. Both Applicants are principles of primary schools. That furthermore complicates the question of the criteria to be applied when assessing a top performing school. All very confusing to say the least.
22. Regarding the supplementary issues raised by the Applicants I am of the view that the Department did not commit an unfair labour practice by changing the composition of the panel (Page 111 Bundle B), the venue of the interview proceedings, or the fact that they did not stick to the minute with the interview times that they provided to the Applicants. Regarding the Applicants’ complaints about the scoring method used by the Department I am of the view that the assessment of the candidates at the interview must relate to both the minimum requirements of the job as well as the highest score obtained in the assessment. The DOE failed to assess all the candidates taking into consideration the minimum requirements of the post as set out in the advertisement.
23. The Applicants requested one of the following remedies if I found in their favour:
• That they be promoted to the posts in question;
• Alternatively; that they be awarded just and equitable compensation;
• Further alternatively; that the recruitment and selection process, including the appointment of the successful candidates be declared unfair and the Department be ordered to commence the recruitment and selection process afresh.
24. I am not in a position to appoint the Applicants to the Respondents’ positions as I do not know whether they are the best of all the candidates who applied for the positions. In this regard I refer to the LC matter of National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC) para 10-12. Although the Applicants testified that they are the best candidates for the positions it is a decision for the Department to make after taking into consideration the minimum criteria as per the advert. Once the minimum requirements have been met, a commissioner will rarely interfere with an employer’s choice of who they wish to appoint to a position. It is the prerogative of an employer to choose who they believe is the best candidate for a position.
25. Clearly the least upheaval would have been an order compensating the Applicants for the unfair labour practice committed against them. I am aware and took into consideration the fact that the appointments were made 2 years ago and that the advertisement attracted 99 applications. I also took into consideration the effect that my award would have on the 2nd,3rd and 4th Respondents. When contemplating what relief to award I even went to the extent to direct the parties to submit written submissions on the monthly remuneration that currently applies to the position of an EDO, and the monthly remuneration of the Applicants in the matter in the event that a compensatory award is made in favour of the Applicants. However, after a careful consideration of the fundamental principal underlying the dispute, namely that the Department failed to assess all the candidates taking into consideration the minimum requirements of the posts as set out in the advertisement, I decided that the only appropriate relief is that the entire process is redone. In this regard I refer to paragraph 62 of the Khumalo judgment supra where the Court states as follows:
“(62) …The formulation and application of requirements for a particular post is a minimum prerequisite for ensuring the objectivity of the appointment process. Persons who do not meet the requirements for a post in the public sector ought not to be appointed.”
26. The First Respondent committed an unfair labour practice against the Applicants.
27. The First Respondent is ordered to commence the recruitment and selection process for the Sara Baartman District Educational Development Officer positions afresh.
28. The appointments of the 2nd ,3rd , and 4th Respondents are declared unfair and are set aside.
SIGNED AND DATED ON 05 July 2021
ADVOCATE L CHAROUX