ELRC306-20/21EC
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Award Date:
11 July 2021
Case Number: ELRC306-20/21EC
Commissioner: MBULELO SAFA
Date of Award 11 July 2021
In the ARBITRATION between: -
SADTU obo NOKUMELELA DALASILE
Applicant
And
DEPARTMENT OF EDUCATION, EASTERN CAPE – FIRST RESPONDENT
NONQABA HELLEN XOPA - SECOND RESPONDENT
Respondents
Applicant’s representative: Mr Ayanda Tyantsi
Applicant’s Address: SADTU
Telephone: 0635021701
Telefax
E-mail ayandatyantsi22@gmail.com
First Respondent’s Representative Mr T. Liphaphang
Respondent’s Address Department of Education, Botha Sigcawu Building, Mthatha
Telephone 0475024205/0721231562
Telefax 0406-84458
E-mail
Second Respondent Representative: Mr S. Gashe
Second Respondent Address : SADTU Polly Gabada Region
Telephone : 0475314217
Telefax : 0475312552
DETAILS OF THE HEARING AND REPRESENTATION
1. This matter was set down for arbitration on the 22nd June 2021 at TRINSET Department of Education Offices in Mthatha
2. The Applicant was represented by Mr Ayanda Tyantsi from SADTU, the First Respondent represented by Mr T. Liphaphang and the Second Respondent represented by Mr S. Gashi from SADTU.
3. The proceedings were recorded in an audio recorder.
ISSUES TO BE DECIDED
4. Whether or not the decision of the Respondent to promote the Applicant to the post of HOD was unfair and to make an appropriate award.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised a post of HOD at Mbuqe Park SPS in the bulletin Volume 6 of 2019.
6. The Applicant and the Second Respondent applied for the post, were shortlisted, interviewed and got the same rating in the interviews.
7. The School Governing Body (SGB) of Mbuqe Park JSS took a decision to recommend the Second Respondent as the preferred candidate to be appointed in the post.
8. Unhappy with the decision of the SGB not to recommend her and the decision of the First Respondent not to promote her the Applicant then referred this unfair labour practice dispute.
9. The relief the Applicant seeks is the setting aside of the promotion of the Second Respondent and any other appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant submitted one bundle of documents and led oral evidence through two witnesses. The First Respondent submitted one bundle of documents also and led evidence through one witness. The Second Respondent did not submit any bundles and did not lead evidence.
APPLICANT’S EVIDENCE AND ARGUMENT
11. The Applicant, Nokumemelela Dalasile, testified that she was currently working as an educator at Mbuqe Park SPS and she is teaching Natural Science and Mathematics. She has been teaching since 1991 and thus by 2019 she had an experience of 28 years.
12. She had qualifications which are Diploma in Education, Advanced Certificate in Education and Bachelor of Education Honours in Education Management.
13. She testified further that according to the application letter of the Second Respondent she has been teaching for 30 years. But six years of that she (Second Respondent) was teaching Economic Management Sciences (EMS). Effectively therefore the experience of the Second Respondent in teaching Mathematics was twenty-four (24) years as compared to the twenty-eight (28) years of the Applicant.
14. Applicant also testified that she had more and better attributes than the Second Respondent as she has more experience and was more qualified. She had also acted in the post for a long time before it was advertised.
15. She felt the SGB should have looked at their experience and qualifications when deciding who to recommend to the post of HOD. The decision of the SGB not to appoint her was unfair.
16. She admitted that the distinction in the Diploma of the Second Respondent was an attribute.
17. When it was put to her that there was no prejudice on the part of the SGB in making the decision as it was within their power she responded to say the SGB should have allowed the principal to advise them.
18. Asked if she knew whether or not the principal advised the SGB she said did not advise because he marched out of the process.
19. In cross-examination she stated that she started teaching in 1991 and the Second Respondent started in 1989, and admitted that the Second Respondent has more teaching experience than herself.
20. The other witness of the Applicant, Manalandile Mazomba, who is the principal of Mbuqe Park SPS, testified that when the interviews for the HOD were being done he was the resource person whose main responsibility was to ensure that the SGB adheres to the prescripts.
21. He said he knew the Applicant as an educator who started teaching in 1991 and has been teaching Mathematics since then.
22. He also said he knew the Second Respondent who started teaching in 1989 but joined the school in 2010 then teaching EMS.
23. He knew what the qualifications of the Applicant were and confirmed them as above. He further stated that the qualifications of the Second respondent were Primary Teachers Diploma, BCom and BCom Accounting.
24. The Applicant was elected by other teachers, including the Second Respondent, to be the acting HOD when the post became vacant. While she was acting she carried out her duties very well.
25. On the day of the interviews the panel scored both of them at 52. The SGB engaged in a debate on how to break the tie; others suggested that the principal must be allowed to decide. Witness made his own suggestions including comparing the qualification of the two candidates, looking at who of them best associate with the vision of the school, taking both names to the department and letting the department make a decision, drop both candidates or opt for the second rated candidate or having the process started afresh by a neutral panel.
26. The SGB did not take any of his proposals instead they decided that they were going to vote to break the tie. Because the witness never heard about that happening he decided to march out of the meeting. He went to report to the Circuit Manager at the District Office. The Circuit Manager advised him to go back to the SGB. By the time he got back to the SGB they have already made a decision by voting and have recommended the Second Respondent.
27. He conceded that the powers to make the decision were vested on the SGB.
28. Both candidates; Applicant and Second Respondent met the requirements of the post.
RESPONDENT’S EVIDENCE AND ARGUMENT
29. The Second Respondent, Nonqaba Xopa, testified that the requirements for the HOD post were Mathematics and Natural Science in grades 4 to 7.
30. She said she had more experience than the Applicant and had been an HOD before and was qualified for the post.
31. She admitted that in her qualifications she does not have a management qualification and that the Applicant had it.
32. She stated that by 2019 she had an experience of 24 years teaching Mathematics and the Applicant had 28 years.
33. She indicated that to break the tie the SGB had to use their discretion.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. This matter was referred in terms of section 186(2) of LRA as unfair labour practice of promotion. The Applicant thus bears the onus of proof.
35. The Applicant limited the focus of her attack on the promotion process only on the manner in which the SGB arrived at the decision to recommend the Second Respondent as the preferred candidate for the post of HOD at Mbuqe Park SPS. The Applicant is aggrieved by the fact that the SGB voted when making a decision and did not consider other factors like experience and qualifications of the Applicant as against those of the Second Respondent.
36. Clause B.5.4.13 of Personnel Administrative Measures(PAM) enjoins the SGB to adhere to the principles in clause B.5.4 of PAM and submit in order of preference to the HOD a list of three recommended candidates.
37. The principles mentioned in clause B.5.4 of PAM are equity, redress and representativity.
38. The reading of clause B.5.4.13 of PAM reveals that that there is no prescription as to how the SGB should arrive at the decision of who the three preferred candidates are, except adhering to the principles.
39. The other principle which I believe finds application is on clause B.5.4.7.4 of PAM where it is stated that the recommendation of the SGB should not be obtained through undue influence of the SGB members.
40. In this dispute no evidence was led that there was an undue influence on the SGB. In his arguments the Second Respondent representative suggested that the principal of Mbuqe Park SPS may have attempted to undue influence the SGB. However, there was no evidence led on that and as such I am unable to make a finding to that effect.
41. The Applicant argued that the SGB could have considered the fact that, according to her, she has more experience and better qualified than the Second Respondent.
42. Clause 45 of ELRC Collective Agreement 3 of 2016 holds thus; “The Head of Department as the employer is expected to act reasonably in making an appointment. His decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others. If the decision arrived at by the Head of Department is reasonable then it must stand.”
43. Clause 39 of the same collective agreement holds that the decision to or not to promote falls within the managerial prerogative of the employer. The arbitrator should only interfere with the exercise of the employer discretion if there is gross unreasonableness, bad faith or where the decision relating to promotion is seriously flawed.
44. The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324(LC) held that there are limited grounds on which a commissioner or court may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The discretion ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
45. I am enjoined here not to decide whether or not the First Respondent made an incorrect decision in not promoting the Applicant but to decide whether the First Respondent acted unfairly towards the Applicant.
46. In this dispute it was common cause that the SGB was a competent body to exercise the discretion. They exercised their discretion in a manner that could not be proved to be malicious.
47. It is my finding that the decision of the SGB to recommend the Second Respondent for promotion was not malicious, was not unreasonable and consequently was not flawed. The Applicant may have a particular view on what the SGB should have considered in making the decision but that does not make the decision flawed.
48. Consequently, there were no factors that warrant interference with the prerogative of the employer. In his arguments the Applicant raised a point that that there may have been no ratification of the decision of the panel. During the arbitration there was no evidence led to the effect that there was no ratification.
In the circumstances I make the following award;
AWARD
49. The application fails
50. The Applicant, Nokumelela Dalasile, is not entitled to the relief she sought.
Mbulelo Safa: ELRC Panelist
Commissioner: MBULELO SAFA
Date of Award 11 July 2021
In the ARBITRATION between: -
SADTU obo NOKUMELELA DALASILE
Applicant
And
DEPARTMENT OF EDUCATION, EASTERN CAPE – FIRST RESPONDENT
NONQABA HELLEN XOPA - SECOND RESPONDENT
Respondents
Applicant’s representative: Mr Ayanda Tyantsi
Applicant’s Address: SADTU
Telephone: 0635021701
Telefax
E-mail ayandatyantsi22@gmail.com
First Respondent’s Representative Mr T. Liphaphang
Respondent’s Address Department of Education, Botha Sigcawu Building, Mthatha
Telephone 0475024205/0721231562
Telefax 0406-84458
Second Respondent Representative: Mr S. Gashe
Second Respondent Address : SADTU Polly Gabada Region
Telephone : 0475314217
Telefax : 0475312552
DETAILS OF THE HEARING AND REPRESENTATION
1. This matter was set down for arbitration on the 22nd June 2021 at TRINSET Department of Education Offices in Mthatha
2. The Applicant was represented by Mr Ayanda Tyantsi from SADTU, the First Respondent represented by Mr T. Liphaphang and the Second Respondent represented by Mr S. Gashi from SADTU.
3. The proceedings were recorded in an audio recorder.
ISSUES TO BE DECIDED
4. Whether or not the decision of the Respondent to promote the Applicant to the post of HOD was unfair and to make an appropriate award.
BACKGROUND TO THE ISSUE
5. The First Respondent advertised a post of HOD at Mbuqe Park SPS in the bulletin Volume 6 of 2019.
6. The Applicant and the Second Respondent applied for the post, were shortlisted, interviewed and got the same rating in the interviews.
7. The School Governing Body (SGB) of Mbuqe Park JSS took a decision to recommend the Second Respondent as the preferred candidate to be appointed in the post.
8. Unhappy with the decision of the SGB not to recommend her and the decision of the First Respondent not to promote her the Applicant then referred this unfair labour practice dispute.
9. The relief the Applicant seeks is the setting aside of the promotion of the Second Respondent and any other appropriate relief.
SURVEY OF EVIDENCE AND ARGUMENT
10. The Applicant submitted one bundle of documents and led oral evidence through two witnesses. The First Respondent submitted one bundle of documents also and led evidence through one witness. The Second Respondent did not submit any bundles and did not lead evidence.
APPLICANT’S EVIDENCE AND ARGUMENT
11. The Applicant, Nokumemelela Dalasile, testified that she was currently working as an educator at Mbuqe Park SPS and she is teaching Natural Science and Mathematics. She has been teaching since 1991 and thus by 2019 she had an experience of 28 years.
12. She had qualifications which are Diploma in Education, Advanced Certificate in Education and Bachelor of Education Honours in Education Management.
13. She testified further that according to the application letter of the Second Respondent she has been teaching for 30 years. But six years of that she (Second Respondent) was teaching Economic Management Sciences (EMS). Effectively therefore the experience of the Second Respondent in teaching Mathematics was twenty-four (24) years as compared to the twenty-eight (28) years of the Applicant.
14. Applicant also testified that she had more and better attributes than the Second Respondent as she has more experience and was more qualified. She had also acted in the post for a long time before it was advertised.
15. She felt the SGB should have looked at their experience and qualifications when deciding who to recommend to the post of HOD. The decision of the SGB not to appoint her was unfair.
16. She admitted that the distinction in the Diploma of the Second Respondent was an attribute.
17. When it was put to her that there was no prejudice on the part of the SGB in making the decision as it was within their power she responded to say the SGB should have allowed the principal to advise them.
18. Asked if she knew whether or not the principal advised the SGB she said did not advise because he marched out of the process.
19. In cross-examination she stated that she started teaching in 1991 and the Second Respondent started in 1989, and admitted that the Second Respondent has more teaching experience than herself.
20. The other witness of the Applicant, Manalandile Mazomba, who is the principal of Mbuqe Park SPS, testified that when the interviews for the HOD were being done he was the resource person whose main responsibility was to ensure that the SGB adheres to the prescripts.
21. He said he knew the Applicant as an educator who started teaching in 1991 and has been teaching Mathematics since then.
22. He also said he knew the Second Respondent who started teaching in 1989 but joined the school in 2010 then teaching EMS.
23. He knew what the qualifications of the Applicant were and confirmed them as above. He further stated that the qualifications of the Second respondent were Primary Teachers Diploma, BCom and BCom Accounting.
24. The Applicant was elected by other teachers, including the Second Respondent, to be the acting HOD when the post became vacant. While she was acting she carried out her duties very well.
25. On the day of the interviews the panel scored both of them at 52. The SGB engaged in a debate on how to break the tie; others suggested that the principal must be allowed to decide. Witness made his own suggestions including comparing the qualification of the two candidates, looking at who of them best associate with the vision of the school, taking both names to the department and letting the department make a decision, drop both candidates or opt for the second rated candidate or having the process started afresh by a neutral panel.
26. The SGB did not take any of his proposals instead they decided that they were going to vote to break the tie. Because the witness never heard about that happening he decided to march out of the meeting. He went to report to the Circuit Manager at the District Office. The Circuit Manager advised him to go back to the SGB. By the time he got back to the SGB they have already made a decision by voting and have recommended the Second Respondent.
27. He conceded that the powers to make the decision were vested on the SGB.
28. Both candidates; Applicant and Second Respondent met the requirements of the post.
RESPONDENT’S EVIDENCE AND ARGUMENT
29. The Second Respondent, Nonqaba Xopa, testified that the requirements for the HOD post were Mathematics and Natural Science in grades 4 to 7.
30. She said she had more experience than the Applicant and had been an HOD before and was qualified for the post.
31. She admitted that in her qualifications she does not have a management qualification and that the Applicant had it.
32. She stated that by 2019 she had an experience of 24 years teaching Mathematics and the Applicant had 28 years.
33. She indicated that to break the tie the SGB had to use their discretion.
ANALYSIS OF EVIDENCE AND ARGUMENT
34. This matter was referred in terms of section 186(2) of LRA as unfair labour practice of promotion. The Applicant thus bears the onus of proof.
35. The Applicant limited the focus of her attack on the promotion process only on the manner in which the SGB arrived at the decision to recommend the Second Respondent as the preferred candidate for the post of HOD at Mbuqe Park SPS. The Applicant is aggrieved by the fact that the SGB voted when making a decision and did not consider other factors like experience and qualifications of the Applicant as against those of the Second Respondent.
36. Clause B.5.4.13 of Personnel Administrative Measures(PAM) enjoins the SGB to adhere to the principles in clause B.5.4 of PAM and submit in order of preference to the HOD a list of three recommended candidates.
37. The principles mentioned in clause B.5.4 of PAM are equity, redress and representativity.
38. The reading of clause B.5.4.13 of PAM reveals that that there is no prescription as to how the SGB should arrive at the decision of who the three preferred candidates are, except adhering to the principles.
39. The other principle which I believe finds application is on clause B.5.4.7.4 of PAM where it is stated that the recommendation of the SGB should not be obtained through undue influence of the SGB members.
40. In this dispute no evidence was led that there was an undue influence on the SGB. In his arguments the Second Respondent representative suggested that the principal of Mbuqe Park SPS may have attempted to undue influence the SGB. However, there was no evidence led on that and as such I am unable to make a finding to that effect.
41. The Applicant argued that the SGB could have considered the fact that, according to her, she has more experience and better qualified than the Second Respondent.
42. Clause 45 of ELRC Collective Agreement 3 of 2016 holds thus; “The Head of Department as the employer is expected to act reasonably in making an appointment. His decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others. If the decision arrived at by the Head of Department is reasonable then it must stand.”
43. Clause 39 of the same collective agreement holds that the decision to or not to promote falls within the managerial prerogative of the employer. The arbitrator should only interfere with the exercise of the employer discretion if there is gross unreasonableness, bad faith or where the decision relating to promotion is seriously flawed.
44. The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324(LC) held that there are limited grounds on which a commissioner or court may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The discretion ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
45. I am enjoined here not to decide whether or not the First Respondent made an incorrect decision in not promoting the Applicant but to decide whether the First Respondent acted unfairly towards the Applicant.
46. In this dispute it was common cause that the SGB was a competent body to exercise the discretion. They exercised their discretion in a manner that could not be proved to be malicious.
47. It is my finding that the decision of the SGB to recommend the Second Respondent for promotion was not malicious, was not unreasonable and consequently was not flawed. The Applicant may have a particular view on what the SGB should have considered in making the decision but that does not make the decision flawed.
48. Consequently, there were no factors that warrant interference with the prerogative of the employer. In his arguments the Applicant raised a point that that there may have been no ratification of the decision of the panel. During the arbitration there was no evidence led to the effect that there was no ratification.
In the circumstances I make the following award;
AWARD
49. The application fails
50. The Applicant, Nokumelela Dalasile, is not entitled to the relief she sought.
Mbulelo Safa: ELRC Panelist
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ELRC 302 -20 /21 NW
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