ELRC705-2/21LP
Text
Award Date:
21 July 2021
SEKGOBELA, H P Applicant
and
DEPARTMENT OF EDUCATION – LIMPOPO 1ST Respondent
PHILEMON MAKGAHLE 2nd Respondent
ARBITRATION AWARD
Case Number: ELRC705-2/21LP
Last date of arbitration: 13 July 2021
Receipt of closing arguments: N/A
Date of award: 21 July 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Case No: ELRC705-2021LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held online per Zoom application on 14 July 2021. The employee was present and represented by M S Tjia, a union official of SADTU. N E Nyathela, the employer’s official, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employer committed an unfair labour practice relating to promotion.
BACKGROUND TO THE ISSUE
[3] The following facts are common cause:
(a) Both the employee and the second respondent were shortlisted and interviewed for the position of principal at Mokgoma-Phokoane Primary School;
(b) The employee scored the highest marks in the interview while the second respondent obtained second position;
(c) The employer appointed the second respondent to the position;
(d) The second respondent scored 64.3 while the employee scored 74.5 points;
SURVEY OF EVIDENCE AND ARGUMENT
[4] A bundle of documents was presented by the employer and marked as “Bundle A”.
EMPLOYEE’S EVIDENCE
Hlabishi Patrick Sekgobela testified under oath as follows:
Evidence-in-chief
[5] In 2010 he was appointed the deputy principal of Phokoane School. Prior to the merger between Phokoane school and Mokgoma school, he was appointed as a principal from the year 2014 to 2015. During the year 2016 there was a merger of Phokoane school and Mokgoma school when another principal person was appointed to be acting principal. It was then that he was moved to deputy principal.
[6] He feels prejudiced because had he been appointed to the post of principal, he would have earned a higher salary. He did very well during the interview.
Evidence under cross-examination
[7] He was referred to the Collective Agreement concluded under the auspices of the Council as per pages 83 to 94 of the bundle A. Clause 42 thereof reads as follows:
“The mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was unfair.” He agrees with the contents of the agreement.
[8] He further concedes that at the time the two schools merged, Philemon Makgahle (hereinafter referred to either as “the second respondent” or just Makgahle), was already the principal of Phokoane since the year 2011 and that in comparison with him, Makgahle had vast experience to manage a school.
[9] In addition to obtaining a higher score than Makgahle, he is a holder of qualifications in senior science and school leadership and management for principals. These qualifications were considered when he was shortlisted. He concedes that the Head of Department (HOD) appointed Makgahle as he was similarly recommended for the position.
Employer’s Evidence
Precious Mageza (Mageza) testified for the employer as follows:
[10] She is employed as the Deputy Director (Corporate Services) for Sekhukhune district. The applicant was ranked higher than Makgahle but when appointing, the employer considered other factors.
[11] Firstly, they compared the candidates based on experience and noticed that the applicant had twenty-two (22) years’ experience as an educator. He was appointed in 2009 as a deputy principal and thus has eleven (11) years’ experience for management. By comparison, Makgahle has twenty-nine (29) years’ experience as an educator. In 2002 he was appointed as deputy principal. In 2011 he was appointed as the principal of Phokoane primary school, which gives him management experience of nineteen (19) years. When one does comparisons, it becomes apparent that Makgahle has more experience as a principal than the applicant. The applicant only acted from October 2013 to December 2015.
[12] At the time Phokoane and Mokgoma merged into one school, Makgahle was already a principal. In 2017 there was a further merger with a third school, which resulted with the school being a little bigger.
[13] When the decision to appoint Makgahle was made, all these factors were taken into consideration. Ever since he has been at the helm, the school never experienced any protests. In deciding whom to appoint, the HOD was also taking into account the best interests of the child.
Under cross-examination she further testified as follows:
[14[She was shown clause 46 of the Collective Agreement as per page 96 of the bundle, which reads as follows:
“The mere fact that an employee is already acting in a post does not give him or her an automatic right to a promotion when the position becomes available”.
[15] A recommendation of an interview panel does not translate into an appointment as the HOD has the final say.
ANALYSIS OF EVIDENCE AND ARGUMENT
[16] As per general principles of evidence, he who alleges must prove. Accordingly, the onus rests upon the employee to establish a case of unfair labour practice. The employee’s case is premised on the entitlement to promotion.
[17] Did the employee succeed to discharge the burden? I opine that he has dismally failed to do so. Details of my reasons are below.
[18] It is common cause that both the employee and the second respondent were interviewed for the post of principal at the school but the employee won the contest by scoring the highest marks while the second respondent obtained lower marks.
[19] The nub of the employee’s claim that he was supposed to be appointed into the position is the fact that in the interview, he scored the highest marks. As already stated above, the onus to prove that the employer’s failure to appoint him constitutes an unfair labour practice rests with the employee and it thus behooves him to adduce sufficient evidence and argument to show that the employer was supposed to appoint him mainly because he scored the highest marks in comparison to other contestants, particularly the employee. In this regard, he has failed.
[20] It is my considered view that merely because the employee’s interview score was the highest, in the absence of cogent evidence why the HOD should premise the decision to appoint solely on that rating, the scoring would not, per se, entitled him to the position. Otherwise, to do so would inevitably drive the employer into the snare of acting unfairly against the second respondent, who, as per irrefutable evidence by Mageza, the sole witness for the employer, has more experience in school management than the employee. As per unchallenged evidence, which I accept as the truth, Mageza has brought to light the fact that the second respondent has a total experience of twenty-nine years as an educator and nineteen years in school management. The employee’s experience both as an educator as well as a manager is glaringly dwarfed by that of the second respondent. He has a total span of twenty-two years as an educator and his overall experience in management is similarly lower as compared to that of the second respondent.
[22] Furthermore, it has been the employer’s irrefutable evidence that the second respondent had, at the time of the merger of the two schools, already been a principal without any mass protests being directed at his style of management and thus in the best interests of the children, it was prudent to allow a seamless process of appointing him to the post.
[23] The collective agreement has been referred to by both parties, as highlighted above. The guideline that underpins the employer’s defence is that the mere fact that an appointed employee did not score the highest mark would not by itself mean that the appointment was unfair. I agree with the guideline as it is in line with common sense and logic. To do otherwise would promote an untenable outcome that would expose the employer to more valid claims of unfairness as more deserving candidates would be wrongly overlooked as the HOD shall have failed to apply his/her mind by mechanically implementing the very quantity-based recommendations of the interviewing panel. Were that to be the case, it would create an assailable situation where the interviewing panel becomes the ultimate decision maker on appointment and the HOD and all other personnel along the administrative chain are simply implementing the decision of the panel. Given the framework of our public education administration, that approach can never pass muster.
[24] The employee also illuminated clause 46 of the collective agreement, which states that the mere fact that an employee is already acting in a post does not give him/her the automatic right to a promotion when the position becomes available. Can one say that is the case with the second respondent? The answer should be in the negative, especially when one considers that the evidence in support of the employer’s case is that by comparison, the second respondent was more experienced than the employee. It is not just because the second respondent has already been acting and/or appointed into the position of principal of the school that became persuasive, but his longer experience as well as other factors highlighted above were seen by the employer as placing him in pole position and thus more suitable than the employee to play a role that would be in the best interest of the children.
[25] The employee furthermore referred to his qualifications and alleges that same should have worked in his favour. His allegations that this was not done is without foundation as he did not adduce sufficient evidence to underpin his allegations. On the contrary, by his own account under cross-examination, it is possible that these favourable factors were considered, otherwise how does the employee explain that he was shortlisted and scored the highest marks?
[26] As already pointed to above, the overall onus to prove unfairness lies with the employee and yet his own evidence is not sufficient to underpin his claim, while on the other hand the employer has adduced abundant evidence to parry the employee’s allegations of unfairness.
[27] By way of conclusion, I arrive at the ineluctable finding that the employee has failed to prove that the employer’s conduct of not appointing him to the position for which he was interviewed constitutes an unfair labour practice relating to promotion.
AWARD
[28] The employer did not commit any unfair labour practice as alleged or at all.
[29] The employee’s claim is hereby dismissed.
CCMA COMMISIONER: MATHEWS M RAMOTSHELA
Sector:
…………………………………………………
Signed
and
DEPARTMENT OF EDUCATION – LIMPOPO 1ST Respondent
PHILEMON MAKGAHLE 2nd Respondent
ARBITRATION AWARD
Case Number: ELRC705-2/21LP
Last date of arbitration: 13 July 2021
Receipt of closing arguments: N/A
Date of award: 21 July 2021
MATHEWS RAMOTSHELA
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
Case No: ELRC705-2021LP
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
[1] The arbitration hearing was held online per Zoom application on 14 July 2021. The employee was present and represented by M S Tjia, a union official of SADTU. N E Nyathela, the employer’s official, presented its case. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
[2] I am enjoined to determine whether the employer committed an unfair labour practice relating to promotion.
BACKGROUND TO THE ISSUE
[3] The following facts are common cause:
(a) Both the employee and the second respondent were shortlisted and interviewed for the position of principal at Mokgoma-Phokoane Primary School;
(b) The employee scored the highest marks in the interview while the second respondent obtained second position;
(c) The employer appointed the second respondent to the position;
(d) The second respondent scored 64.3 while the employee scored 74.5 points;
SURVEY OF EVIDENCE AND ARGUMENT
[4] A bundle of documents was presented by the employer and marked as “Bundle A”.
EMPLOYEE’S EVIDENCE
Hlabishi Patrick Sekgobela testified under oath as follows:
Evidence-in-chief
[5] In 2010 he was appointed the deputy principal of Phokoane School. Prior to the merger between Phokoane school and Mokgoma school, he was appointed as a principal from the year 2014 to 2015. During the year 2016 there was a merger of Phokoane school and Mokgoma school when another principal person was appointed to be acting principal. It was then that he was moved to deputy principal.
[6] He feels prejudiced because had he been appointed to the post of principal, he would have earned a higher salary. He did very well during the interview.
Evidence under cross-examination
[7] He was referred to the Collective Agreement concluded under the auspices of the Council as per pages 83 to 94 of the bundle A. Clause 42 thereof reads as follows:
“The mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was unfair.” He agrees with the contents of the agreement.
[8] He further concedes that at the time the two schools merged, Philemon Makgahle (hereinafter referred to either as “the second respondent” or just Makgahle), was already the principal of Phokoane since the year 2011 and that in comparison with him, Makgahle had vast experience to manage a school.
[9] In addition to obtaining a higher score than Makgahle, he is a holder of qualifications in senior science and school leadership and management for principals. These qualifications were considered when he was shortlisted. He concedes that the Head of Department (HOD) appointed Makgahle as he was similarly recommended for the position.
Employer’s Evidence
Precious Mageza (Mageza) testified for the employer as follows:
[10] She is employed as the Deputy Director (Corporate Services) for Sekhukhune district. The applicant was ranked higher than Makgahle but when appointing, the employer considered other factors.
[11] Firstly, they compared the candidates based on experience and noticed that the applicant had twenty-two (22) years’ experience as an educator. He was appointed in 2009 as a deputy principal and thus has eleven (11) years’ experience for management. By comparison, Makgahle has twenty-nine (29) years’ experience as an educator. In 2002 he was appointed as deputy principal. In 2011 he was appointed as the principal of Phokoane primary school, which gives him management experience of nineteen (19) years. When one does comparisons, it becomes apparent that Makgahle has more experience as a principal than the applicant. The applicant only acted from October 2013 to December 2015.
[12] At the time Phokoane and Mokgoma merged into one school, Makgahle was already a principal. In 2017 there was a further merger with a third school, which resulted with the school being a little bigger.
[13] When the decision to appoint Makgahle was made, all these factors were taken into consideration. Ever since he has been at the helm, the school never experienced any protests. In deciding whom to appoint, the HOD was also taking into account the best interests of the child.
Under cross-examination she further testified as follows:
[14[She was shown clause 46 of the Collective Agreement as per page 96 of the bundle, which reads as follows:
“The mere fact that an employee is already acting in a post does not give him or her an automatic right to a promotion when the position becomes available”.
[15] A recommendation of an interview panel does not translate into an appointment as the HOD has the final say.
ANALYSIS OF EVIDENCE AND ARGUMENT
[16] As per general principles of evidence, he who alleges must prove. Accordingly, the onus rests upon the employee to establish a case of unfair labour practice. The employee’s case is premised on the entitlement to promotion.
[17] Did the employee succeed to discharge the burden? I opine that he has dismally failed to do so. Details of my reasons are below.
[18] It is common cause that both the employee and the second respondent were interviewed for the post of principal at the school but the employee won the contest by scoring the highest marks while the second respondent obtained lower marks.
[19] The nub of the employee’s claim that he was supposed to be appointed into the position is the fact that in the interview, he scored the highest marks. As already stated above, the onus to prove that the employer’s failure to appoint him constitutes an unfair labour practice rests with the employee and it thus behooves him to adduce sufficient evidence and argument to show that the employer was supposed to appoint him mainly because he scored the highest marks in comparison to other contestants, particularly the employee. In this regard, he has failed.
[20] It is my considered view that merely because the employee’s interview score was the highest, in the absence of cogent evidence why the HOD should premise the decision to appoint solely on that rating, the scoring would not, per se, entitled him to the position. Otherwise, to do so would inevitably drive the employer into the snare of acting unfairly against the second respondent, who, as per irrefutable evidence by Mageza, the sole witness for the employer, has more experience in school management than the employee. As per unchallenged evidence, which I accept as the truth, Mageza has brought to light the fact that the second respondent has a total experience of twenty-nine years as an educator and nineteen years in school management. The employee’s experience both as an educator as well as a manager is glaringly dwarfed by that of the second respondent. He has a total span of twenty-two years as an educator and his overall experience in management is similarly lower as compared to that of the second respondent.
[22] Furthermore, it has been the employer’s irrefutable evidence that the second respondent had, at the time of the merger of the two schools, already been a principal without any mass protests being directed at his style of management and thus in the best interests of the children, it was prudent to allow a seamless process of appointing him to the post.
[23] The collective agreement has been referred to by both parties, as highlighted above. The guideline that underpins the employer’s defence is that the mere fact that an appointed employee did not score the highest mark would not by itself mean that the appointment was unfair. I agree with the guideline as it is in line with common sense and logic. To do otherwise would promote an untenable outcome that would expose the employer to more valid claims of unfairness as more deserving candidates would be wrongly overlooked as the HOD shall have failed to apply his/her mind by mechanically implementing the very quantity-based recommendations of the interviewing panel. Were that to be the case, it would create an assailable situation where the interviewing panel becomes the ultimate decision maker on appointment and the HOD and all other personnel along the administrative chain are simply implementing the decision of the panel. Given the framework of our public education administration, that approach can never pass muster.
[24] The employee also illuminated clause 46 of the collective agreement, which states that the mere fact that an employee is already acting in a post does not give him/her the automatic right to a promotion when the position becomes available. Can one say that is the case with the second respondent? The answer should be in the negative, especially when one considers that the evidence in support of the employer’s case is that by comparison, the second respondent was more experienced than the employee. It is not just because the second respondent has already been acting and/or appointed into the position of principal of the school that became persuasive, but his longer experience as well as other factors highlighted above were seen by the employer as placing him in pole position and thus more suitable than the employee to play a role that would be in the best interest of the children.
[25] The employee furthermore referred to his qualifications and alleges that same should have worked in his favour. His allegations that this was not done is without foundation as he did not adduce sufficient evidence to underpin his allegations. On the contrary, by his own account under cross-examination, it is possible that these favourable factors were considered, otherwise how does the employee explain that he was shortlisted and scored the highest marks?
[26] As already pointed to above, the overall onus to prove unfairness lies with the employee and yet his own evidence is not sufficient to underpin his claim, while on the other hand the employer has adduced abundant evidence to parry the employee’s allegations of unfairness.
[27] By way of conclusion, I arrive at the ineluctable finding that the employee has failed to prove that the employer’s conduct of not appointing him to the position for which he was interviewed constitutes an unfair labour practice relating to promotion.
AWARD
[28] The employer did not commit any unfair labour practice as alleged or at all.
[29] The employee’s claim is hereby dismissed.
CCMA COMMISIONER: MATHEWS M RAMOTSHELA
Sector:
…………………………………………………
Signed
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ELRC 302 -20 /21 NW
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