Award Date: 12 July 2021
Case Number: ELRC258-20/21EC
In the matter between
Tselani Ernestina Mathumbu Applicant
Eastern Cape Department of Education First Respondent
Sizwe Madolo Second Respondent
School Governing Body- Pelomosa Primary School Third Respondent
Appearances: For the applicant: Mr M. Chabane (Finger Attorneys);
For the first respondent: Mr A. Buyana;
For the second respondent: Ms T. Mbotya (SADTU)
For the third respondent: Mr C. Mohau
Arbitrator: M.A. Nozigqwaba
Heard: 15 December 2020; 22 February 2021; 15- 16 April 2021 and 04 June 2021
Delivered: 14 July 2021
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held virtually on 15 December 2020; 22 February 2021; 15- 16 April 2021 and 04 June 2021. Ms Tselani Ernestetia Mathumbu (applicant) was represented by Mr M. Chabane, an attorney from Finger Attorneys. Eastern Department of Education (1st respondent) was represented by its official, Mr A. Buyana. The appointed incumbent in the contested position, Mr Sizwe Madolo (2nd respondent), was represented by a SADTU official, Ms T. Mbotya. Pelomosa Primary School Governing Body (3rd respondent) was represented by its chairperson, Mr C. Mohau.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 11 June 2021. Only the applicant’s heads were received by the Council. I have considered these heads in penning this award.
ISSUE TO BE DECIDED
3. I have to determine whether any unfair labour practice relating to promotion was committed when the 1st respondent appointed the 2nd respondent and overlooked the applicant in the deputy principal post of Pelomosa Primary School, and if so, issue the appropriate relief.
BACKGROUND TO THE ISSUE
4. This is a promotion dispute involving Pelomosa Primary School deputy principal position (post level 3) advertised in the 1st respondent’s Open Post Bulletin Volume 2 of 2020. Pelomosa Primary School is under the Joe Gqabi District.
5. After the post was advertised the applicant (HOD post level 2 educator at Pelomosa Primary at that time), the 2nd respondent (a post level 1 educator supervised by the applicant at same school) and other candidates applied for the post. The 2nd respondent was ultimately appointed to the position with effect from 02 September 2020.
6. The applicant's challenge to the post is that she was deliberately not shortlisted even though she met the post key requirements in terms of teaching subjects (Natural Sciences and Technology) and substantive experience in management. The 2nd respondent was shortlisted and appointed even though he did not have the required teaching subjects and substantive experience in management. The applicant is therefore saying the 1st respondent’s action of deliberately ignoring her for shortlisting and ultimately appointing the applicant was both substantive and procedurally unfair and the relief she is seeking is that the appointment of the 2nd respondent be nullified and the applicant be appointed instead, or any appropriate relief allowed by section 193(4) of the Labour Relations Act 66 of 1995 (LRA).
7. The 1st respondent disputes that an unfair labour practice was committed.
SURVEY OF THE EVIDENCE AND ARGUMENTS
8. The applicant testified that she has been employed by the respondent as a teacher for more than twenty nine years. She was promoted to being an HOD (salary level 2) as from 2015. Her teaching subjects are Natural Sciences and Technology, and has been teaching these subjects for a long time when she applied for the post under contest. She also supervised the 2nd respondent from 2015 up to when he got the deputy principal position. The two teaching subjects (Natural Sciences and Technology) were requirements of the post, which the 2nd respondent did not have. The only shortlisted candidate who met all the requirements of the post is candidate number 16. Also, the applicant had been captured as just the ‘educator’ in the master list whilst she was an HOD. A criteria of music was added by the panel even though it was never reflected in the advertisement. The applicant was further disadvantaged when the panel took a decision that it would consider for shortlisting candidates born in 1975 and younger. The applicant regarded this as unfair discrimination, as this was not justified and was not reflected as a requirement in the advertisement. When the applicant realized that she was not shortlisted she lodged a formal complaint on 11 August 2020 which was not satisfactorily and speedily attended to as she was ultimately told that there was nothing that can be done.
9. Under cross examination she was asked whether she had music as a subject and the applicant’s reply was that she did not have it and that it was never a requirement for the position.
10. The 1st respondent did not call or lead any evidence in rebuttal of the applicant’s case even though it disputed it. The 2nd and 3rd respondent also did not lead any evidence.
11. It is argued for the applicant that the respondent committed a procedural flaw when it shortlisted and ultimately appointed a candidate that did not meet the criteria set out in the advertisement and excluded the applicant who met these requirements. Her non-shortlisting was deliberately done as it was ignored that she was an HOD as she was just referred in the master list as just as an ‘educator’. Her 29 years’ service as an educator was also ignored. She was also discriminated upon when a further requirement of being born in 1975 and younger was included by the panel without any fair justification. The appointment was also substantively unfair as the incumbent got appointed even though the incumbent did not meet the teaching subjects’ requirements. He also had no experience in management in teaching environment as opposed to the applicant who had been an HOD from 2015. It was further argued for the applicant that costs should be ordered against the 1st respondent who proceeded to defend the unfair decision at arbitration. The 1st respondent led no evidence in rebuttal of the applicant’s case and this clearly shows that it defended a decision it knew from the onset that it was unfair. As a result of this conduct the applicant incurred legal cost as she employed the services of an attorney to represent her in the arbitration.
12. No arguments were received from each of the respondents.
ANALYSIS OF EVIDENCE AND ARGUMENTS
13. The applicant was a better candidate when compared to the 2nd respondent as the latter was a post level 1 when the shortlisting was done. She had been an HOD for about five years when the impugned process was engaged in. However, it cannot be said that of all the candidates who applied she was the most suited or the best candidate. There is shortlisted candidate number 16 who met all the post requirements. It has not been proven that the applicant would have been far a better candidate than this candidate. Yes, a candidate with a profile inferior than her was ultimately appointed but she cannot be said to be the best of all the shortlisted candidates. Substantive unfairness claim has therefore not been proved. This means she will not be entitled to a substantive relief.
14. An unfair labour practice may also be procedurally unfair where the processes leading to the appointment were flawed. In the case at hand the applicant was prejudiced when her profile was deliberately reflected as an educator even though she was an HOD. She was then not shortlisted. The fact that she was in management was ignored and a person with no management in the education sector was shortlisted and appointment. Also, there is what I consider as unfair discrimination which is when age (from 1975 and younger) was included as a criterion even though it did not appear in the advertisement and its inclusion was never justified. The respondents did not endeavor to find resolution as early as when the applicant lodged a formal complaint on 11 August 2020, which was before the ultimate appointment of the incumbent. I hold a view that the 1st respondent should at least have stopped the process and not confirm the appointment in September 2020.
15. What would be appropriate compensation in the circumstances. In Kwadukuza Municipality v SALGBC R5 000.00 was awarded for serious procedural unfairness in a promotion dispute. In Munsany v SSSBC and others the Labour Court held that R10 000.00 was fair compensation for serious procedural unfairness in a promotion dispute. In the case at hand the applicant was deliberately not shortlisted even though she had the required teaching subjects required in the advertisement and had five years actual education sector managerial experience. What is also worth considering is the fact that the applicant was unfairly discriminated and excluded on the basis of being born before 1975. In SAA v V the LAC awarded compensation amount to R50 000.00 for an employee who was subjected to unfair discrimination. In the case at hand the applicant was deliberately excluded by not reflecting that she was an HOD and being excluded even though she had required teaching subjects. Furthermore the applicant was subjected to unfair discrimination when she was excluded because of being born before 1975. I am thus leaning to the compensation awarded in SAA case because of the discrimination the applicant was subjected to. The amount awarded in 2014 in SAA case was R50 000.00 six years ago, and I think R60 000.00 would be a fair compensation in 2021.
16. On the issue of costs, I have considered the fact that the 1st respondent did not lead any evidence in rebuttal of the applicant’s case even though it defended the decision not to shortlist her. It is also noteworthy that the 1st respondent also did not submit closing arguments as it had undertaken on 04 June 2021. This clearly shows that there was really no basis for the 1st respondent to continue and defend a decision which it could not even argue for its sustenance. In light of the aforesaid I find that the 1st respondent acted in a frivolous and vexatious manner when it proceeded and defended the dispute in the arbitration while it did not lead any evidence and did not submit any arguments in defence of the decision impugned. The respondent is to be ordered to pay the applicant’s legal costs for the five arbitration sessions as follows, R6 000.00 for the 1st session and R4 000.00 for the remaining four sessions. The total amount is R22 000.00
17. I therefore make the following award:
17.1. The 1st respondent committed an unfair labour practice as provided in section 186(2) of the LRA in that it acted in a procedurally unfair manner when it did not shortlist the applicant but instead shortlisted and promoted the 2nd respondent, who did not meet the requirements of the post as stipulated in the bulletin.
17.2. The appointment of the 2nd respondent is thus found to be null and void.
17.3. The 1st respondent is ordered to reverse the appointment of the 2nd respondent by not later than 31 July 2021 and start the process from shortlisting and ensure that the process is carried through in accordance with EEA and PAM. No person who was involved in the initial flawed process should be part of this new process.
17.4. The 1st respondent is ordered to pay the applicant an amount of R60 000.00 as compensation for procedural unfairness by not later than 31 July 2021. Interests in this amount will accrue at the rate of 15.5 % per annum from 31 July 2021.
17.5. The 1st respondent is further ordered to pay the applicant costs amounting to R22 000.00 by not later than 31 July 2021.
Commissioner: Mxolisi Alex Nozigqwaba