ELRC607-20/21 NC
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Award Date:
26 July 2021
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IN THE ELRC ARBITRATION
BETWEEN:
Shaun Witbooi Applicant
and
DEPARTMENT OF EDUCATION – Northern Cape Respondent
and
Mr. SHAUN BOOYSEN 2nd Respondent
ARBITRATION AWARD
Case Number: ELRC607-20/21 NC
Arbitration date: 24-25 April 2021
Date of Award: 26 July 2021
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 23 April 2021 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.
2. The applicant is Shaun Witbooi and he was represented by Advocate Nathan Williams. The respondent is The Department of Education: Northern Cape, and was represented by Mr. Tebogo Obusitse, Labour Relations Officer. The second respondent, Mr. Booysen also attended.
3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the conduct of the respondent not to shortlist the applicant constituted an unfair labour practice. If so, make an appropriate order.
BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
6. In terms of common cause facts:
6.1.1 The applicant commenced employment with the respondent on 01 January 2008 as an Educator. He is currently a Departmental Head (HOD) at Greenpoint High School in Kimberley. He has been an Educator for thirteen (13) years.
6.1.2 The Principal Post Level 4 was advertised and the closing date was on 27 March 2020. the applicant did apply. The applicant formed part of the long list, but he was not shortlisted. The second respondent, Booysen, was the successful candidate and was appointed as from 01 January 2021.
6.1.3 FACTS IN DISPUTE: The rule that was used was used for scoring during the shortlisting process was unfair, the applicant feels that he was scored less in terms of experience whilst the Panel knew he had the institutional knowledge; Part of the criteria for the post is community involvement, the applicant has more experience in community involvement without proof.
6.1.4 RELIEF SOUGHT: The applicant asks to be appointed to the post of Principal; alternatively, the appointment of the successful incumbent be declared null and void and the post be readvertised; further alternatively, 12 months’ compensation.
7. He is currently earning R31 397,94 per month.
8. Aggrieved by failure to shortlist him, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC.
THE EVIDENCE OF THE APPLICANT
9. The applicant testified that he started working for the respondent on 01 January 2008 and he is currently a Departmental Head appointed in 2018 after he acted in the position. He has been Academic Departmental Head for Afrikaans and English. He started at Greenpoint High School in 2014.
10. He testified that in terms of Management Plan for Shortlisting and Interview dated 01 September 2020 the post number 202003/002, the first task or exercise to take place on 03 September 2020 at 14:30 was: “A letter to the unions to inform and invite them to the shortlisting and interviews that will take place“ the person responsible was Mr. S. Makgoka, the SGB Secretary; The next activity was on 09 September 2020 at 14:30 the task was the SGB Meeting to select the selection panel for shortlisting and interview the responsible person is the chairperson Mrs. C Robin. The next activity on 10 September 2020 at 08:00am was that the panel would meet for refresher workshop on the shortlisting process, the responsible person was the Circuit Manager, Mr. B. Daniels. At 10:30am on 10 September 2020 the shortlisting process for the Principal post started and the responsible person, the elected panel.
11. He testified that on 10 September 2020 there was a meeting held at Teachers’ Centre to discuss shortlisting for the Principal Post Level 4, wherein the following people attended: Mr. D Daniels as the Departmental official, Ms Mapule Mapia as SADTU representative, Mr. M as SAOU representative, Carmila Romen as the chairperson, J Maleo as an SGB member, van Heerde as the SGB member and Shaun Makgoka as the Teacher. The minute states: “Community involvement must be looked at. Criteria cannot be changed and weighting has also been put in place. CVs handed over to the chairperson by Mr. Daniels included NCK6 to NCK10. Everyone on the Panel score the same points”.
12. He testified that if everyone is scoring the same points which means if one of them made a mistake, if he was supposed to be scored four points, then it means that mistake would have been multiplied by 4, instead of multiplying it by 3, then it was multiplied by weight and multiply it by a number of panel members. Then it means the difference would not have been just one mark for the scoring, it would be that It definitely had difference in his overall total and resulted in him not being shortlisted.
13. He testified that that the Selection Panel agreed that they would give one point if the candidate has seven years of teaching experience; HOD experience between one year and ten they give two points; the Deputy Principal experience between two and five years they give three points; the Acting Deputy Principal experience will give the candidate four points and the current Principal would give five points.
14. He further testified that the Deputy Principal who is there for two to three years was supposed to weigh better or higher than the Acting Deputy Principal because the Deputy Principal is there on a permanent position, whilst the Acting Deputy Principal is standing in for someone else. The Acting Deputy Principal should be replaced by Acting Principal in order for that person to receive four points, instead of Acting Deputy Principal. The Acting Principal assumes the duties of the Principal or is doing responsibilities greater than the Acting Deputy Principal.
15. He further testified that the SGB has appointed him as an Acting Principal in June 2020. The shortlisting was done on 10 September 2020. He testified that the Selection Panel could not say they were not aware that he acted in the position of the Principal by the time they did shortlisting, because the panel members formed part of the SGB which appointed him to act as the Principal.
16. He testified that at the time Mr. Booysen, the second respondent, applied for the post in terms of his CV he listed his work experience as the Deputy Principal appointed in 2016 to present. The CV does not state that he is an Acting Principal. He testified that in terms of the minutes of the Selection Panel, Mr. Booysen was supposed to get three (3) points because it states the Deputy Principal with experience of between two to five years will get three (3) points and Mr. Booysen has four years’ experience. Instead of scoring Mr. Booysen three (3) points in terms of the minutes of the Selection Panel, he was scored four (4) points. That is, 3 points x4 members of Selection Panel =12 x 2 for weight for experience =24 points; Mr. Booysen was supposed to get 24 points. Instead Mr. Booysen received four (4) points, which means 4 points x4 members of the Selection Panel =16 x2 weight for experience =32 points. Mr. Booysen then received eight (8) more points than he was supposed to get, which gave him advantage over other applicants.
17. He also testified that it did not make sense for the SGB not shortlisting him for the position of the Principal after the same SGB appointed him to act as the Principal. If the criteria have to make sense, they had to take the acting into account because he was at the same school, he was acting and he was appointed to act by the very same panel members in their capacity as SGB. It further does not make sense to get no marks for Acting Principal, but somehow one gets four (4) marks for the Acting Deputy Principal, which means the Acting Principal should have been taken into account, rather than an Acting Deputy Principal.
18. He further testified that Mr. Booysen was not the only one that got the points he should not have received, the same mistake actually happened with Eldrid Anthony Turton. In terms of Mr. Turton’s CV, he stated that he was appointed as a Departmental Head since 2003 until present; he has been the Deputy Principal from January 2012 until 2013. There is no acting in his CV. He testified that Mr. Turton was supposed to get two (2) points because he clearly stated that he was the HOD since November 2003, he will not get three (3) points because the Deputy Principal only get three (3) points if he has experience for between two (2) to five (5) years. He testified that the Selection Panel had scored Mr. Turton four (4) points in the capacity of the Deputy Principal.
19. He testified that he was supposed to get thirty-two (32) points for his experience, instead of 16 points. He testified that the Selection Panel had deprived him of 16 points. He further testified that the Selection Panel has scored him in total 108, whereas Mr. Turton was scored 112 points in total. Mr. Turton has had the advantage of four (4) points over him. If 16 points are added to the total of 108 points, he would have been scored 124 in total, which means that he would have been shortlisted. There were five candidates invited for the interview.
20. He further testified that in the Minutes of the Selection Panel it was stated: “The Panel decide on six candidates since candidates five and six does have the same score. Interviews to be held next week Thursday 17 September 2020. Questions to be chosen before interviews.” He also testified that in the “NOMINATION” Mr. DW Daniels states: “I fully agree with the SGB nomination of Booysen, Turton and Stanley in order of preference.”
21. He further testified that the impact of not being shortlisted by not doing the scoring right was that it automatically meant he did not receive the number of points which he was supposed to receive. If he would have received the correct number of points, then he would have been invited to the interviews. Because he did not appear at the interviews or had an opportunity to gain marks at the interviews, he would have carried up and added with the marks from shortlisting to determine the SGB’s recommendation or nomination. He testified that he had nothing personal against Mr. Booysen.
22. He testified that in terms of community curriculum, a candidate would be scored one (1) point if a candidate is a member, a member with proof would be scored three (3) points and if a candidate is an Executive with proof would be scored five (5) points. He testified that he did get eight (8) points for community curriculum. He had received one (1) point from each panel member. That is, 4 points x 2 weight =8.
23. He testified that Greenpoint Ward Committee is a committee elected by the members of the community which is supposed to assist a Ward Counsellor for that particular term. This is part of Executive because each of these members on the Ward Committee have an executive portfolio. He is currently in the portfolio pertaining to education on this committee. He testified that he was supposed to receive at least five (5) points.
24. He further testified that he was elected as Provincial Schools Cricket Secretary in 2013 and he is still presently occupying it. This is part of the Provincial Executive pertaining to schools’ cricket matters in the province of Northern Cape. He testified that this is also Executive and he was supposed to receive maximum of five (5) points.
25. He also testified that he was elected as the chairperson of the Francis Baard District Schools Cricket in 2019 and he is currently still occupying this position. He is basically the Head of the cricket structure. This forms part of the Executive. He should have received five (5) points. He should have received forty (40) points in total. If he adds 32 points to 124 points for experience he would have ended with one hundred and fifty-six (156) points. He testified that he would have been shortlisted if he was given that score. He testified that the Selection Panel would know about his work as the chairperson, secretary and committee convenor as he had several encounters with the SGB. The whole committee had engagement with the SGB on several times. They are aware that he forms part and parcel of the Ward Committee. He has written numerous administrative communications in his capacity as the Secretary to all schools across the province and he had to take leave from school to engage in this secretarial commitments. He also testified that he had submitted his CV as part of the application and his CV spells out these things.
26. He testified that he was never charged for dishonesty. He also testified that he had submitted or attached numerous relevant documents to his CV when he made his application. He clearly has institutional knowledge of the leadership of those executive positions and the managerial skills outlined in his CV. He testified that there is no way the Selection Panel could say they were not aware of these extra-mural activities because the chairperson of the Panel, the teacher serving on the Panel Ms. Jean Maleo, and others, but the whole SGB actually is aware of the institutional knowledge. He is from the same institution which advertised the post. These are the people who signed off all the documents he submitted to the school in his various capacities.
27. He testified that he would have wanted the SGB to take into account the value he would bring as a candidate for the Principal position as he grew up in the Greenpoint community, he attended both Primary School and High School in Greenpoint which gives him a first-hand experience of the pains or challenges the children are going through in the community, and he is aware of the suffering the parents of these children are going through on day to day basis. He lives in the community which puts him in a unique and privileged position to address those challenges as he is aware of what they are going through. He has an intimate knowledge of what the school needs. If he is the Principal, he would be able to give a meaningful contribution by virtue of his position in the school.
28. He testified that as the Selection Panel had the rule that all panel members must score the candidate the same, it disadvantaged him because if one of the Selection Panel members had made a mistake, it would be that mistake and the score which would have an impact on the candidate. Mr. Booysen and Mr. Turton were advantaged by that mistake. He testified that his original marks were 108, if he would have been scored correctly he would have obtained 156. Whilst the original score of Mr. Turton was 112, but if the corrections are made of the scoring, he would then end up with 96 points. He believes that if the scores were done correctly, he would have been shortlisted because it was this low score of one hundred and eight (108) that made the SGB to place him in the position that fell outside the required number of six candidates to be invited to the interviews. If the corrections were made, he would have been amongst the top two candidates in terms of the end total. He testified that he was ranked number seven because of wrong scores. The panel had shortlisted six candidates. He further testified that if he had been scored correctly, then he would have ended up in the top 2 positions which means he would have had the opportunity to go and perform in the interview and become number one on the recommendation list. He testified that the consequence of wrong scoring is that it will disadvantage other applicants.
29. He testified under cross examination that the rule was that each panel member should give same score, the correct rule would have been each individual was supposed to have been allowed to give their own specific scoring because they are using four different people, to give their own specific scoring based on the evidence or documents before them. He testified that if rule states that the criteria are that a candidate who has Afrikaans 1st Language must be scored 5 is correct. He further testified that if a panel member scores the candidate 3 where the criteria states that a candidate should be scored 4, then that panel member would have deviated from the rule. He testified that in terms of experience, he does not have the proof or evidence as the Acting Principal because he did not get the opportunity to update his CV. He conceded that he did not have relevant experience at the time of applying for the post.
30. He testified that the appointment of the Principal was supposed to have been done in June 2020 and on 01 July 2020 the school would have the new Principal. The shifting did not take into account what else the specific candidates would have then submitted in terms of change to their CVs and as a result he was disadvantaged because he did not get an opportunity to update his CV. He conceded that at the time of applying for the post he did not have the experience of acting. He testified that if it was at another school, the rule would be acceptable. By September 2020 he had a relevant experience. He also testified that in terms of extramural curriculum activities, he stated in his CV that he is the executive, school sport coordinator, district structure where he is a chairperson and the provincial structure where he is the secretary, he should have received 5 marks. In terms of the criteria, a member would receive 1, member plus proof 3, executive plus proof 5. He testified that when he submitted his CV he also attached a number of documents, the SGB knew his role of his positions in the community.
31. He testified that if a candidate applied and did not submit the documents would not be considered. He testified that he has acted as the HOD. He testified that when he was appointed to act, the Deputy-Principal who was supposed to act, fell ill and they normally assigned one of the HOD/s in the absence of the Deputy-Principal. The Deputy-Principal wrote a letter recommending him to act where the SGB endorsed him as the Acting Principal. He testified that he told his representative, Advocate Williams, that he only had updated CV, he did not have the CV that he submitted. He testified that in June 2020 the schools were closed, but opened for Grade 12 learners.
THE APPLICANT’S CLOSING ARGUMENTS
32. ADV Williams relied on the following judgements: Department of Justice V Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC); South African Police Services V Safety and Security Sectoral Bargaining Council and Others (2012) 6 BLLR 596 (LC); City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC); Minister of Safety and Security v SSSBC and Others (2010) 4 BLLR 428 (LC); Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC); NEHAWU obo Monyana and Another v Masege and Others (JR363/2012) (2014) ZALCJHB 124 (8 April 2014; Mlambo v National Prosecution Authority and Others (C437/11) (2012) ZALCCT 26 (21 June 2012); Mbatha v Safety and Security Sectoral Bargaining Council and Others (JR372/13) (2015) ZALCJHB 332 (30 September 2015); Apollo Tyres SA (PTY) LTD v CCMA and others the Labour Appeal Court, unfairness was defined as follows: Unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct whether negligent or intended.” He indicated that in the case of Bosman v SA Police Services the Labour Court confirmed the principle that a failure by the employer to prove that it had been following its own procedures in the promotion of an employee will and could result in their decision “overturned and the employer’s prerogative in the decision being overridden”.
33. He stated that the Northern Cape Department of Education (NCDE) Vacancy Advert, states that each candidate must provide the detailed up to date curriculum Vitae (CV) containing personal profile, contact details, language proficiency, full details of courses attended, a complete chronological record of teaching experience and Teachers Training, employment record, service history in education, skills, knowledge and competencies, co-curricular and extra-mural activities, community involvement, management and leadership experience, special achievements, etc, as well as the names and cell phone numbers of at least two persons willing to act as referees, must be submitted with each application. Certified copies of original identification/Smart Card ID, qualification (matric certificates, degrees, diplomas and certificates) and certified copies of qualification transcripts each include all subjects passed and date on which all requirements for the qualification were met must be attached to the application form. It is compulsory for all potential applicants to be registered with South African Council for Educators (SACE)
34. He argued that it should therefore be common cause that no “shortlisting criteria” can be created which requires “proof” for “co-curricular, extra-mural activities and community involvement”. He stated that only a detailed CV is required. He argued that proof is only required for copies of ID, qualifications and academic transcripts. He further argued that it is therefore capricious, arbitrary and unfair for the first respondent’s Selection Panel to decide on a shortlisting scoring criteria that requires proof of “co-curricular, extra-mural activities and community involvement” because the CV is detailed.
35. He stated that the applicant has never been charged or found guilty of any dishonesty in terms of his submissions made in his CV, thus confirming that the first respondent tacitly consents and does not dispute the veracity of the contents of the applicant’s CV. He indicated that the applicant’s testimony was that he did in fact submit various forms of proof, but the first respondent failed in providing such when subpoenaed for the all the applicant’s submitted documentation for the job application. He indicated that the applicant disputes the substantive factors of the shortlisting criteria as it was developed and applied to him. He stated that the applicant disputes the logic of the scoring criteria for experience for multiple reasons. Firstly, the scoring criteria for experience is fatally flawed because it does not take into account “acting experience of a Principal” but in contrast, the scoring criteria awards 4 points for “Acting experience of a Deputy Principal”. Secondly, the scoring criteria for experience is fundamentally unfair because it makes no sense to award any points to a job candidate who may have acted as Deputy Principal because the post is for a Principal position and not a Deputy Principal position. Thirdly, the first respondent’s Selection Panel did not even implement their flawed scoring criteria.
36. He argued that they disadvantaged the applicant by not acknowledging his known acting experience as the Principal and they advantaged the second respondent by awarding him 4 points for “Acting Experience as a Deputy Principal” when in fact the second respondent did not have experience listed in his CV for Acting Experience as a Deputy Principal. He argued that the problem of scoring a 4 is compounded by the fact that the second respondent’s Selection Panel all scored the incorrect score of 4, resulting in 4 multiplied by 4 Selection Panel members, multiplied by the weighing of 2, which equals to 16 points incorrectly given to the second respondent. He indicated that the same applies to the job candidate who was recommended as the second preferred candidate, Mr. Turton. Mr. Turton was awarded 4 points for experience, but should have received 2 points. If Mr. Turton was correctly scored at the shortlisting, he would not have had the right to proceed to the interview stage of selection and recruitment process.
37. He indicated that the first and the second respondent did not dispute the applicant’s testimony that SGB had appointed him as Acting Principal of the Greenpoint High School in June 2020 and therefore the following principle of law applies “that which is not placed in dispute, stands”. He further indicated that the applicant acted as a Principal in a critical and fundament period where he was called upon to lead. He indicated that the applicant accepted and by all accounts, there was not a single area of concern raised. The applicant was praised and acknowledged by the SGB, from which the Selection Panel was chosen. He stated that the applicant disputes a further rule as adopted by the Selection Panel, as the example provided by the first respondent’s witness, that “if the Deputy Principal of Greenpoint High School applied for the Principal position at Greenpoint High School but forgot to include in her application form that she was the Deputy Principal of Greenpoint High School, the Selection Panel would punish her and exclude their factual knowledge “. In other words, the Selection Panel would ignore their factual knowledge and because the information was not written down on a form or CV, they would deliberately exclude their institutional and factual knowledge. He indicated that the applicant rejects the above logic of the first respondent’s Selection Panel and argues that the institutional knowledge must form part of the Selection Panel’s consideration.
38. He indicated that the Selection Panel knew that the applicant was appointed to act as the Principal for June 2020 yet they failed to include such experience as part of the shortlisting selection criteria, which is in addition to the Selection Panel wrongly scoring the second respondent for experience as well as Mr. Turton.
39. He stated that the applicant has made up a strong case confirming an unfair labour practice for the non-shortlisting arising from the selection and recruitment process for the Principal PL4 position at Greenpoint High School in the Northern Cape. He argued that the first respondent in fact does not have a case. He stated that the first respondent did not dispute that the Selection Panel scoring was flawed in respect of the second respondent. He indicated that the second respondent, Mr. Booysen, also conceded to the following critical aspects put to him in cross-examination: the rule decided by the Selection Panel that everyone must have the same score is flawed because if one panel member makes a fatal error, it is repeated by all 4 panel members and multiply by the weight of the scoring criteria, creating compounding unfairness. The selection criteria as it was applied to other candidates, including the second respondent and Mr. Turton was fatally flawed as they awarded higher points than what they should have received based on shortlisting selection criteria point system; each of Selection Panel members should not have scored 4 points for both the second respondent and Mr. Turton, but rather should have scored the second respondent 3 points and Mr. Turton 2 points for “experience”; the rule that if a candidate fails to specify a factual truth that the panel members were aware of, but it was not included in the CV, the Selection Panel should take that factual awareness and knowledge into account based on the principle of substantive equality; the Selection Panel used the wrong scoring criteria for “experience” and confirmed that the applicant did in fact act as the Principal for the month of June 2020; the Selection Panel should have removed “Acting Deputy Principal” which provided 4 points and should have replaced it with “Acting Principal” for 4 points because the post was for a Principal position.
40. If the applicant was scored based on the above, he would have received 32 points instead of 16 points for “experience”; the shortlisting for “extra mural and community involvement” was not to trick candidates, but to give them high points for high community involvement; confirmed that the job advert does not require “proof” of community involvement, but rather required a “detailed CV” from candidates; confirmed that the applicant did provide a detailed CV; confirmed that the applicant was involved in extra-mural and community involvement at an executive level; the applicant should have received 5 points instead of 1 point for extra-mural and community involvement; had the applicant received the correct points for extra-mural and community involvement he would have received a 40 points instead of 8 points; if the applicant was scored correctly he would have 156 points instead of the 108 points received at the shortlisting; and if the applicant did score 156, he would have been part of the top 2 shortlisted candidates and would have been able to compete for the Principal position at the interview stage.
41. He indicated that in analyzing any evidence, the fundamental feature is only analyzing the content of the testimony, but equally important is assessing the credibility of the witnesses and their testimony. He indicated that in assessing the credibility of the witness, demeanor plays a key role. He further indicated that the Supreme Court of Appeal has provided a guideline that to come to a conclusion on disputed issues, which are: the credibility of the various factual witnesses, their reliability and the probabilities.
THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF SHAUN MAKGOKA: THE PL1 EDUCATOR
42. He testified that he has been an Educator for ten (10) years and five months. He testified that he was just a panel member. He testified that the panel agreed that all Panel members should score the candidate the same. If all Panel members agreed to score the candidate with Afrikaans First Additional Language 5 marks, they all should score the candidate the same mark of 5. If one Panel member scores a candidate contrary, it would be irregular to score the candidate differently as Panel members, they are sitting with the same CV.
43. He further testified that in terms of experience, as he personally understood the process he could not score a person based on what he knows, but based on what was in front of them; otherwise they would not require a CV for shortlisting, it will be also irregular if a Panel members scores the candidate differently. As Panel members, they all sit with one CV. He testified that the applicant did not have the experience in his CV, the based there is a time linked as to how long the person acted in that position. He raised the issue that the applicant acted for 10 days or two weeks, he did not score him 4 because the acting did not happen for six months or a year.
44. He testified that in terms of extra-mural activities and community involvement, the decision that the Panel took was that if a candidate is an executive member in the organization and submitted proof, they will score him 5. He testified that he had nothing against the applicant, he had good relationship with the applicant.
45. He testified under cross examination that the panel came with the rule. He confirmed that if a candidate has teaching experience of seven years and more the score is 1 mark. He confirmed that if a candidate has ten years of Departmental Head, the score is 2 points. He further confirmed that if a candidate has five years’ experience of Deputy Principal, the score is three points. He also confirmed that if a candidate had experience as Acting Deputy Principal s/he would get 4 points. He confirmed that a candidate with experience of Acting Principal will get 5 points. He testified that he would score Mr. Barry Booysen 3 for experience. He testified that Mr. Barry Booysen was scored 4 points and it was wrong. He testified that if everyone wrongly scores a candidate 4 points is a bad thing. He further testified that Mr. Barry Booysen was scored 2 points which is 2 x4 =8 and gave him an advantage.
THE RESPONDENT’S CLOSING ARGUMENTS
46. Mr. Tebogo Obusitse stated that the applicant insisted that he is the best, without even being interviewed, but just because he has attended Primary School and High School in Greenpoint and he is from that community. He indicated that the applicant contradicted himself when he testified that the rule (criteria) which was used to score was flawed, but insisted that he should have been scored more using the same rule. He argued that the applicant was not telling the truth when he testified under oath that they had made a request for his curriculum vitae from the first respondent, the subpoena is proof of the documents they had requested from the first respondent. He stated that the applicant deliberately wanted to mislead the arbitration by providing updated curriculum vitae in the “Bundle A”. He indicated that the applicant provided an updated CV to his representative and still did not provide any attachments as proof to support his activities as an executive member, which he never provided in his application. He argued that the applicant did not tell the truth under oath when he claimed to have attached proof in his application, to an extent that Advocate Williams wanted him to justify that the Panel knew or had the institutional knowledge of activities the applicant was involved in. He indicated that applicant could not even outline to the arbitration which or what proof he specifically attached.
47. He stated that the applicant was given a chance to try and resolve the issue in dispute and the issue was amicably resolved with the applicant requesting to go through the scoring sheets. He argued that even if the scoring points of Mr. Turton had to be reduced as illustrated by the applicant’s representative, the applicant would still not make it to the interview compared to the scores of other candidates. He stated that the second respondent, Mr. Booysen, is qualified for the position of the Principal and has the necessary experience for the position even if he is not from Greenpoint. He indicated that the Panel did not act frivolously, capriciously or unreasonable in their scoring and agreeing with the criteria they used as Mr. Shaun Makgoka has testified, the Panel had no preview as to who the applicants are and what they had attached in their applications until when the envelope with the applications was opened.
48. He stated that section 28 of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. He indicated that even the courts have held that section 28 (2) is also applicable in promotion disputes in the education sector in the Settlers Agricultural High School v HOD, Limpopo (2002) JOL (10167) (T). He further indicated that the Constitutional Court in the Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) has held that section 28 (2) of the Constitution imposes the obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner which favour protecting and advancing the interest of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives. He stated that the applicant just wants to be promoted at all costs and the Commissioner is requested to rule for the respondent’s as there was no proof on the balance of probabilities of unfair labour practice from the first respondent, this is the plea from the first respondent.
ANALYSIS
49. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the “LRA”. For the purpose of this award, the proof of the existence of an alleged unfair conduct by the respondent rests on the applicant. The applicant had no witnesses and submitted bundle of documents.
DEFINITION OF PROMOTION
50. Advocate Williams referred me to the Labour Court matter of the Department of Justice v Conciliation in which it defined “promotion” as follows: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to promotion [of an employee]. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. Pursuant to the above definition, it follows that the main or the nature of the dispute is whether or not a failure by the respondent not to shortlist the applicant constituted an unfair labour practice relating to promotion. m, d the es den?
51. Giving rise to this dispute is post of the Principal which became available at Greenpoint High School. It is common cause the position of Principal Level 4 was subsequently advertised and the closing date of which was on 27 March 2020. It is further common cause that at the time when the advert closed on 27 March 2020 the applicant had submitted his application for the post and he only had the experience of Departmental Head, his current position in terms of his CV. It is also common cause that the applicant did not submit any supporting documents in respect of the positions he holds in various community organisations.
52. I wish to record in this regard that the applicant on his own version testified during cross examination that the successful candidate would have then been appointed and to resume with the duties effectively on 01 July 2020. However, the appointment did not take place and the rest of the process was shifted to continue in September 2020. I pause here. The applicant’s version is that he should have been given the opportunity to update his CV to include the experience of Acting Principal before shortlisting. I disagree with the version like this. It is evident that had it not been the postponement of the process, the successful candidate was supposed to have been appointed and resumed the duties on 01 July 2020. Then it means the applicant would not have the opportunity to act as the Principal. I am further of the view that such postponement was not an opportunity to all candidates who applied for the Principal Post Level 4 to update their CVs or correct their mistakes in their initial applications. However, wish to record in this instance that the applicant regard the required experience of added by saying Then the argument ensued that In determining whether the respondent had committed an unfair labour practice, it appears to me that the crux of the attack is whether the set out criteria by the Selection Panel during shortlisting process was fair.
53. It is also common cause that on 10 September 2020 the Selection Panel held a meeting in which shortlisting for the position of the Principal was made. It is not disputed that there were six candidates shortlisted from the shortlisting process that took place on 10 September 2020. It is further not disputed that the applicant was number 7 on the list of the shortlisted candidates. It is further common cause that On 10 September 2020 the Selection Panel agreed on the rules for selection criteria and the rule that is the subject of this dispute states: “All panel members must score the candidate the same score”. I am not persuaded by the evidence before me that the rule to score the candidates the same is unfair. Alternatively, I am not convinced by the applicant’s evidence that the rule to score all candidates the same was irrational. The rule as agreed by the Selection Panel applied to all candidates.
54. In attacking this rule, the applicant merely said the rule was not correct or valid. I am of the view that the attack on the validity of the rule amounts to no justification as the applicant has failed to provide reasons as to why the rule to all Selection Panel members to score each candidate the same points is not correct or valid or unfair. The applicant was asked the question on a number of occasions as to if the rule states that each Selection Panel member must score a candidate 5 points for Afrikaans First Language, what is wrong. He could not simply answer the question until Mr. Obusitse asked it differently. I wish to record that the applicant has conceded during cross examination that if a Panel member gives or scores a candidate five (5) points for Afrikaans 1st Language and that Panel member scores a candidate three or four points will be deviating from the rule. This supports the respondent’s evidence that the rule is correct and valid, there was nothing wrong with the rule. The rule was fair and rational.
55. It appears to me that the rule by the Selection Panel to score a candidate the same was attacked by the applicant on the basis of wrong scoring by panel members. On the issue of experience, the rule requires a panel member to score a candidate who has seven years of teaching one point, HOD with one to ten years of experience 2 points, Deputy Principal with two to five years of experience three (3) points, Deputy Principal Acting four (4) points and the current Principal five (5) points.
56. It is common cause that Mr. Turton, who was the second best candidate, according to his CV, was Deputy Principal from January 2012 until 2013. It is not disputed that Mr. Turton was scored based on the experience as Deputy Principal and was scored four (4) points. This is a clear departure from what the rule agreed upon by the Selection Panel prescribes. Evidently, Mr. Turton was wrongly scored and benefitted from that incorrect score by gaining shortlisting.
57. It is common cause that Mr. Turton in total received one hundred and twelve (112) points. I wish to record in this instance that I concur with the applicant’s version that this wrong scoring to Mr. Turton had disadvantaged him as the panel did not shortlist him. It is not disputed that the applicant was scored in total one hundred and eight (108) points. Mr. Turton in fact was supposed to scored two (2) points for experience as the HOD. By scoring him as Deputy Principal, it meant the applicant was disadvantaged as a result because he was not shortlisted. If Mr. Turton was scored as the HOD, he would have received ninety-six (96) points, which places him outside the required number of candidates to be shortlisted. Having regard to the above, I am of the view that the applicant was clearly denied the opportunity to compete at the interview which was scheduled to take place on 17 September 2020.
58. Finally, the same mistake of wrong scoring was applied to the second respondent, Mr. Booysen. Mr. Booysen was scored one hundred and seventy-six (176) in total because he was wrongly scored four (4) as Deputy Principal. When subtracting eight (8) points from the total of one hundred and seventy-six (176) as extra points, he would remain with the total of one hundred and sixty-eighty (168) points, which would still make him to qualify for shortlisting. The applicant was as a result not disadvantaged by incorrect scoring of Mr. Booysen as it is evident that in any way he would still be shortlisted despite subtracting eight (8) points from the total points he received from the Selection Panel.
59. Evidently, this is a serious or flagrant departure by the SGB from or non-observance of its rule. I am of the view that the applicant’s version that his experience of Acting as a Principal for ten (10) days is misplaced, it would be incorrect or misleading to accept that the Selection Panel erred by not taking into account the experience of the applicant when acting as the Principal. It should be totally rejected. This would mean that I have the authority to amend the rules set out by the Selection Panel, which in my view, I am incompetent to determine that. Nothing stops the Selection Panel to make rules when conducting processes like the shortlisting one, however the rule must be fair. In the present matter, the error committed by the Selection Panel was to score Mr. Booysen and Mr. Turton incorrectly. But that incorrect or wrong scoring does not place the applicant at the advantageous position or commanding role. Evidently, the applicant’s CV submitted at the time the applications for the post of the Principal at Greenpoint High School were closed, the closing date was on 27 March 2020, did not have the required experience of Principal. It is common cause that the applicant is currently employed in the position of Departmental Head.
60. In addition, I wish to record that There is no evidence before me to suggest that the applicant was not qualified for the Principal post. Hence he was appointed to act as the Principal when the Deputy Principal was absent or on sick leave. Given the above, I have no doubt in my mind that the applicant met the criteria as laid down in the advert for the post. The only issue in dispute is the rule agreed upon by the Selection Panel to score all the candidates the same, which disadvantaged the applicant by not gaining shortlisting and ultimately be interviewed. Having regard to the a-foregoing, I am of the view that the Selection Panel correctly scored the applicant in terms of experience.
61. In terms of extra-mural activities and community involvement, it is sufficient to state that the Selection panel agreed to score a candidate one (1) point if the candidate was a member of the community organization, a member with proof to be scored three (3) and Executive with proof to be scored five (5) points. Again, this rule applied to all candidates, it did not apply to the applicant alone. the applicant further attacked the rule alleging that he was wrongly scored because all members of the Selection Panel are well aware of his role in the community. They signed off the documents he submitted to the school in his capacity as a Leader of different organization.
62. I further wish to record that no evidence before me stating that other candidates did not submit proof. The selection Panel had accepted that the applicant is a member of community organization and he was scored one (1) point for it. The applicant claims that he was supposed to receive five (5) points as the panel members are well aware that he holds executive positions is immaterial. Personal knowledge of a candidate should not be used to favour or to prejudice a candidate. I am of the view that the applicant is “double dipping” because he is passionately disputing the rule to score candidates the same score, but at the same time he wanted to benefit from the same rule. The Selection Panel needed to account its decision to score a candidate five (5) points if that candidate holds Executive position in the respective organization. I am not persuaded by the applicant’s reasons to be scored five (5) points on the positions he holds at the respective community organization because anyone can claim to be in those positions. One could not accept that a candidate has obtained a University Degree without substantiating the fact. Nothing stopped the applicant to submit proof thereof that he occupies executive positions in the organizations he mentioned in order to justify the five points. I am of the view that the Selection Panel making a rule in which candidates would be scored more points if they produce proof is fair and justified.
63. I am of the view that by scoring Mr. Turton wrongly or incorrectly is sufficient to conclude that the respondent had denied the applicant an opportunity to compete in the interviews for the Principal post level 4. Subsequently the applicant has succeeded in establishing that the omission by the respondent not to shortlist him amounted to an unfair labour practice. The applicant was entitled to be shortlisted and any decision contrary to it constitutes unfair labour practice. I am not in a position to determine whether the applicant would have succeeded if he was shortlisted and competed for the post at the interview, because the second respondent in anyway was correctly shortlisted. The shortlisting of the second respondent did not prejudice the applicant in any manner. I am therefore satisfied that his appointment has caused no harm to the applicant.
64. Having regard to the above, I am satisfied that the applicant has discharged the onus to establish that the conduct by the respondent not to shortlist him constituted an unfair labour practice. Pursuant to the above conclusion, I am of the view that a failure to shortlist the applicant tantamount to substantive unfairness to promotion.
65. Turning to the appropriate remedy, as already stated, the applicant indicated that one of the following remedies will be appropriate: he should be appointed to the post of Principal, or the appointment of Mr. Booysen to the Principal post be declared null and void, and be awarded compensation of 12 months. Having considered the evidence before me, I am of the view that appointing the applicant to the position of Principal is not an appropriate remedy. The applicant did not attend the interviews and subsequently there is no evidence to support or substantiate the fact on the basis that he does not know if he was the best candidate than the second respondent. In other words, I am not satisfied that the applicant has succeeded to prove that he was the best candidate in comparison to Mr. Booysen. I agree with Mr. Obusitse in this instance that I am required to uphold the provisions of the Constitution of the Republic, which provides that the best interests of a child are of paramount important in all matters. I have concluded that the Selection Panel had wrongly scored Mr. Turton to give him an advantage over the applicant which, in the process, prejudiced the applicant since he was not shortlisted. it is that disadvantage that denied the applicant an opportunity to compete for the post of Principal Level 4. Finally, the fact that the appointment of Mr. Booysen was effected from 01 January 2021, the respondent’s unreasonably delayed in resolution of this dispute, I am of the view that the award of compensation is appropriate in the circumstances. I am of the view that the prejudice suffered by the applicant is equivalent to six months’ salary and subsequently an award of six months is just and equitable. In calculating the correct or appropriate amount, I have considered the applicant’s salary which is R31 397,94 monthly salary x 6 months =R188 387,64.
66. In the premises I find the following award competent.
AWARD
67. I find that the applicant, Shaun Witbooi, has established the existence of unfair labour practice.
68. Following the above conclusion, I find the Department of Education: Northern Cape, to have committed an unfair labour practice as defined in terms of section 186 (2) (a) of the Labour Relations Act, 66 of 1995 as amended “the LRA”/
69. As a result of the above, I order the respondent, Department of Education: Northern Cape, to pay the applicant, Shaun Witbooi, a sum of R188 387 ,64 (one hundred and eighty-eight thousand three hundred and eighty- seven and Rands sixty- four cents) in lieu of the travelling costs.
70. The aforesaid amount is subject to statutory tax deduction obtained from SARS and is payable to the applicant by not later than 15 August 2021.
71. I make no order as to costs.
P. Maitsha
ELRC Panelist
BETWEEN:
Shaun Witbooi Applicant
and
DEPARTMENT OF EDUCATION – Northern Cape Respondent
and
Mr. SHAUN BOOYSEN 2nd Respondent
ARBITRATION AWARD
Case Number: ELRC607-20/21 NC
Arbitration date: 24-25 April 2021
Date of Award: 26 July 2021
Pitsi Maitsha
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. On 23 April 2021 an arbitration hearing was held on Zoom. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.
2. The applicant is Shaun Witbooi and he was represented by Advocate Nathan Williams. The respondent is The Department of Education: Northern Cape, and was represented by Mr. Tebogo Obusitse, Labour Relations Officer. The second respondent, Mr. Booysen also attended.
3. The parties gave the evidence under oath. The proceedings were held on Zoom to observe the Covid-19 regulations. The proceedings were digitally recorded using the recording facility available on Zoom.
ISSUE TO BE DECIDED
4. I am required to determine whether or not the conduct of the respondent not to shortlist the applicant constituted an unfair labour practice. If so, make an appropriate order.
BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:
6. In terms of common cause facts:
6.1.1 The applicant commenced employment with the respondent on 01 January 2008 as an Educator. He is currently a Departmental Head (HOD) at Greenpoint High School in Kimberley. He has been an Educator for thirteen (13) years.
6.1.2 The Principal Post Level 4 was advertised and the closing date was on 27 March 2020. the applicant did apply. The applicant formed part of the long list, but he was not shortlisted. The second respondent, Booysen, was the successful candidate and was appointed as from 01 January 2021.
6.1.3 FACTS IN DISPUTE: The rule that was used was used for scoring during the shortlisting process was unfair, the applicant feels that he was scored less in terms of experience whilst the Panel knew he had the institutional knowledge; Part of the criteria for the post is community involvement, the applicant has more experience in community involvement without proof.
6.1.4 RELIEF SOUGHT: The applicant asks to be appointed to the post of Principal; alternatively, the appointment of the successful incumbent be declared null and void and the post be readvertised; further alternatively, 12 months’ compensation.
7. He is currently earning R31 397,94 per month.
8. Aggrieved by failure to shortlist him, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC.
THE EVIDENCE OF THE APPLICANT
9. The applicant testified that he started working for the respondent on 01 January 2008 and he is currently a Departmental Head appointed in 2018 after he acted in the position. He has been Academic Departmental Head for Afrikaans and English. He started at Greenpoint High School in 2014.
10. He testified that in terms of Management Plan for Shortlisting and Interview dated 01 September 2020 the post number 202003/002, the first task or exercise to take place on 03 September 2020 at 14:30 was: “A letter to the unions to inform and invite them to the shortlisting and interviews that will take place“ the person responsible was Mr. S. Makgoka, the SGB Secretary; The next activity was on 09 September 2020 at 14:30 the task was the SGB Meeting to select the selection panel for shortlisting and interview the responsible person is the chairperson Mrs. C Robin. The next activity on 10 September 2020 at 08:00am was that the panel would meet for refresher workshop on the shortlisting process, the responsible person was the Circuit Manager, Mr. B. Daniels. At 10:30am on 10 September 2020 the shortlisting process for the Principal post started and the responsible person, the elected panel.
11. He testified that on 10 September 2020 there was a meeting held at Teachers’ Centre to discuss shortlisting for the Principal Post Level 4, wherein the following people attended: Mr. D Daniels as the Departmental official, Ms Mapule Mapia as SADTU representative, Mr. M as SAOU representative, Carmila Romen as the chairperson, J Maleo as an SGB member, van Heerde as the SGB member and Shaun Makgoka as the Teacher. The minute states: “Community involvement must be looked at. Criteria cannot be changed and weighting has also been put in place. CVs handed over to the chairperson by Mr. Daniels included NCK6 to NCK10. Everyone on the Panel score the same points”.
12. He testified that if everyone is scoring the same points which means if one of them made a mistake, if he was supposed to be scored four points, then it means that mistake would have been multiplied by 4, instead of multiplying it by 3, then it was multiplied by weight and multiply it by a number of panel members. Then it means the difference would not have been just one mark for the scoring, it would be that It definitely had difference in his overall total and resulted in him not being shortlisted.
13. He testified that that the Selection Panel agreed that they would give one point if the candidate has seven years of teaching experience; HOD experience between one year and ten they give two points; the Deputy Principal experience between two and five years they give three points; the Acting Deputy Principal experience will give the candidate four points and the current Principal would give five points.
14. He further testified that the Deputy Principal who is there for two to three years was supposed to weigh better or higher than the Acting Deputy Principal because the Deputy Principal is there on a permanent position, whilst the Acting Deputy Principal is standing in for someone else. The Acting Deputy Principal should be replaced by Acting Principal in order for that person to receive four points, instead of Acting Deputy Principal. The Acting Principal assumes the duties of the Principal or is doing responsibilities greater than the Acting Deputy Principal.
15. He further testified that the SGB has appointed him as an Acting Principal in June 2020. The shortlisting was done on 10 September 2020. He testified that the Selection Panel could not say they were not aware that he acted in the position of the Principal by the time they did shortlisting, because the panel members formed part of the SGB which appointed him to act as the Principal.
16. He testified that at the time Mr. Booysen, the second respondent, applied for the post in terms of his CV he listed his work experience as the Deputy Principal appointed in 2016 to present. The CV does not state that he is an Acting Principal. He testified that in terms of the minutes of the Selection Panel, Mr. Booysen was supposed to get three (3) points because it states the Deputy Principal with experience of between two to five years will get three (3) points and Mr. Booysen has four years’ experience. Instead of scoring Mr. Booysen three (3) points in terms of the minutes of the Selection Panel, he was scored four (4) points. That is, 3 points x4 members of Selection Panel =12 x 2 for weight for experience =24 points; Mr. Booysen was supposed to get 24 points. Instead Mr. Booysen received four (4) points, which means 4 points x4 members of the Selection Panel =16 x2 weight for experience =32 points. Mr. Booysen then received eight (8) more points than he was supposed to get, which gave him advantage over other applicants.
17. He also testified that it did not make sense for the SGB not shortlisting him for the position of the Principal after the same SGB appointed him to act as the Principal. If the criteria have to make sense, they had to take the acting into account because he was at the same school, he was acting and he was appointed to act by the very same panel members in their capacity as SGB. It further does not make sense to get no marks for Acting Principal, but somehow one gets four (4) marks for the Acting Deputy Principal, which means the Acting Principal should have been taken into account, rather than an Acting Deputy Principal.
18. He further testified that Mr. Booysen was not the only one that got the points he should not have received, the same mistake actually happened with Eldrid Anthony Turton. In terms of Mr. Turton’s CV, he stated that he was appointed as a Departmental Head since 2003 until present; he has been the Deputy Principal from January 2012 until 2013. There is no acting in his CV. He testified that Mr. Turton was supposed to get two (2) points because he clearly stated that he was the HOD since November 2003, he will not get three (3) points because the Deputy Principal only get three (3) points if he has experience for between two (2) to five (5) years. He testified that the Selection Panel had scored Mr. Turton four (4) points in the capacity of the Deputy Principal.
19. He testified that he was supposed to get thirty-two (32) points for his experience, instead of 16 points. He testified that the Selection Panel had deprived him of 16 points. He further testified that the Selection Panel has scored him in total 108, whereas Mr. Turton was scored 112 points in total. Mr. Turton has had the advantage of four (4) points over him. If 16 points are added to the total of 108 points, he would have been scored 124 in total, which means that he would have been shortlisted. There were five candidates invited for the interview.
20. He further testified that in the Minutes of the Selection Panel it was stated: “The Panel decide on six candidates since candidates five and six does have the same score. Interviews to be held next week Thursday 17 September 2020. Questions to be chosen before interviews.” He also testified that in the “NOMINATION” Mr. DW Daniels states: “I fully agree with the SGB nomination of Booysen, Turton and Stanley in order of preference.”
21. He further testified that the impact of not being shortlisted by not doing the scoring right was that it automatically meant he did not receive the number of points which he was supposed to receive. If he would have received the correct number of points, then he would have been invited to the interviews. Because he did not appear at the interviews or had an opportunity to gain marks at the interviews, he would have carried up and added with the marks from shortlisting to determine the SGB’s recommendation or nomination. He testified that he had nothing personal against Mr. Booysen.
22. He testified that in terms of community curriculum, a candidate would be scored one (1) point if a candidate is a member, a member with proof would be scored three (3) points and if a candidate is an Executive with proof would be scored five (5) points. He testified that he did get eight (8) points for community curriculum. He had received one (1) point from each panel member. That is, 4 points x 2 weight =8.
23. He testified that Greenpoint Ward Committee is a committee elected by the members of the community which is supposed to assist a Ward Counsellor for that particular term. This is part of Executive because each of these members on the Ward Committee have an executive portfolio. He is currently in the portfolio pertaining to education on this committee. He testified that he was supposed to receive at least five (5) points.
24. He further testified that he was elected as Provincial Schools Cricket Secretary in 2013 and he is still presently occupying it. This is part of the Provincial Executive pertaining to schools’ cricket matters in the province of Northern Cape. He testified that this is also Executive and he was supposed to receive maximum of five (5) points.
25. He also testified that he was elected as the chairperson of the Francis Baard District Schools Cricket in 2019 and he is currently still occupying this position. He is basically the Head of the cricket structure. This forms part of the Executive. He should have received five (5) points. He should have received forty (40) points in total. If he adds 32 points to 124 points for experience he would have ended with one hundred and fifty-six (156) points. He testified that he would have been shortlisted if he was given that score. He testified that the Selection Panel would know about his work as the chairperson, secretary and committee convenor as he had several encounters with the SGB. The whole committee had engagement with the SGB on several times. They are aware that he forms part and parcel of the Ward Committee. He has written numerous administrative communications in his capacity as the Secretary to all schools across the province and he had to take leave from school to engage in this secretarial commitments. He also testified that he had submitted his CV as part of the application and his CV spells out these things.
26. He testified that he was never charged for dishonesty. He also testified that he had submitted or attached numerous relevant documents to his CV when he made his application. He clearly has institutional knowledge of the leadership of those executive positions and the managerial skills outlined in his CV. He testified that there is no way the Selection Panel could say they were not aware of these extra-mural activities because the chairperson of the Panel, the teacher serving on the Panel Ms. Jean Maleo, and others, but the whole SGB actually is aware of the institutional knowledge. He is from the same institution which advertised the post. These are the people who signed off all the documents he submitted to the school in his various capacities.
27. He testified that he would have wanted the SGB to take into account the value he would bring as a candidate for the Principal position as he grew up in the Greenpoint community, he attended both Primary School and High School in Greenpoint which gives him a first-hand experience of the pains or challenges the children are going through in the community, and he is aware of the suffering the parents of these children are going through on day to day basis. He lives in the community which puts him in a unique and privileged position to address those challenges as he is aware of what they are going through. He has an intimate knowledge of what the school needs. If he is the Principal, he would be able to give a meaningful contribution by virtue of his position in the school.
28. He testified that as the Selection Panel had the rule that all panel members must score the candidate the same, it disadvantaged him because if one of the Selection Panel members had made a mistake, it would be that mistake and the score which would have an impact on the candidate. Mr. Booysen and Mr. Turton were advantaged by that mistake. He testified that his original marks were 108, if he would have been scored correctly he would have obtained 156. Whilst the original score of Mr. Turton was 112, but if the corrections are made of the scoring, he would then end up with 96 points. He believes that if the scores were done correctly, he would have been shortlisted because it was this low score of one hundred and eight (108) that made the SGB to place him in the position that fell outside the required number of six candidates to be invited to the interviews. If the corrections were made, he would have been amongst the top two candidates in terms of the end total. He testified that he was ranked number seven because of wrong scores. The panel had shortlisted six candidates. He further testified that if he had been scored correctly, then he would have ended up in the top 2 positions which means he would have had the opportunity to go and perform in the interview and become number one on the recommendation list. He testified that the consequence of wrong scoring is that it will disadvantage other applicants.
29. He testified under cross examination that the rule was that each panel member should give same score, the correct rule would have been each individual was supposed to have been allowed to give their own specific scoring because they are using four different people, to give their own specific scoring based on the evidence or documents before them. He testified that if rule states that the criteria are that a candidate who has Afrikaans 1st Language must be scored 5 is correct. He further testified that if a panel member scores the candidate 3 where the criteria states that a candidate should be scored 4, then that panel member would have deviated from the rule. He testified that in terms of experience, he does not have the proof or evidence as the Acting Principal because he did not get the opportunity to update his CV. He conceded that he did not have relevant experience at the time of applying for the post.
30. He testified that the appointment of the Principal was supposed to have been done in June 2020 and on 01 July 2020 the school would have the new Principal. The shifting did not take into account what else the specific candidates would have then submitted in terms of change to their CVs and as a result he was disadvantaged because he did not get an opportunity to update his CV. He conceded that at the time of applying for the post he did not have the experience of acting. He testified that if it was at another school, the rule would be acceptable. By September 2020 he had a relevant experience. He also testified that in terms of extramural curriculum activities, he stated in his CV that he is the executive, school sport coordinator, district structure where he is a chairperson and the provincial structure where he is the secretary, he should have received 5 marks. In terms of the criteria, a member would receive 1, member plus proof 3, executive plus proof 5. He testified that when he submitted his CV he also attached a number of documents, the SGB knew his role of his positions in the community.
31. He testified that if a candidate applied and did not submit the documents would not be considered. He testified that he has acted as the HOD. He testified that when he was appointed to act, the Deputy-Principal who was supposed to act, fell ill and they normally assigned one of the HOD/s in the absence of the Deputy-Principal. The Deputy-Principal wrote a letter recommending him to act where the SGB endorsed him as the Acting Principal. He testified that he told his representative, Advocate Williams, that he only had updated CV, he did not have the CV that he submitted. He testified that in June 2020 the schools were closed, but opened for Grade 12 learners.
THE APPLICANT’S CLOSING ARGUMENTS
32. ADV Williams relied on the following judgements: Department of Justice V Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC); South African Police Services V Safety and Security Sectoral Bargaining Council and Others (2012) 6 BLLR 596 (LC); City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC); Minister of Safety and Security v SSSBC and Others (2010) 4 BLLR 428 (LC); Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC); NEHAWU obo Monyana and Another v Masege and Others (JR363/2012) (2014) ZALCJHB 124 (8 April 2014; Mlambo v National Prosecution Authority and Others (C437/11) (2012) ZALCCT 26 (21 June 2012); Mbatha v Safety and Security Sectoral Bargaining Council and Others (JR372/13) (2015) ZALCJHB 332 (30 September 2015); Apollo Tyres SA (PTY) LTD v CCMA and others the Labour Appeal Court, unfairness was defined as follows: Unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct whether negligent or intended.” He indicated that in the case of Bosman v SA Police Services the Labour Court confirmed the principle that a failure by the employer to prove that it had been following its own procedures in the promotion of an employee will and could result in their decision “overturned and the employer’s prerogative in the decision being overridden”.
33. He stated that the Northern Cape Department of Education (NCDE) Vacancy Advert, states that each candidate must provide the detailed up to date curriculum Vitae (CV) containing personal profile, contact details, language proficiency, full details of courses attended, a complete chronological record of teaching experience and Teachers Training, employment record, service history in education, skills, knowledge and competencies, co-curricular and extra-mural activities, community involvement, management and leadership experience, special achievements, etc, as well as the names and cell phone numbers of at least two persons willing to act as referees, must be submitted with each application. Certified copies of original identification/Smart Card ID, qualification (matric certificates, degrees, diplomas and certificates) and certified copies of qualification transcripts each include all subjects passed and date on which all requirements for the qualification were met must be attached to the application form. It is compulsory for all potential applicants to be registered with South African Council for Educators (SACE)
34. He argued that it should therefore be common cause that no “shortlisting criteria” can be created which requires “proof” for “co-curricular, extra-mural activities and community involvement”. He stated that only a detailed CV is required. He argued that proof is only required for copies of ID, qualifications and academic transcripts. He further argued that it is therefore capricious, arbitrary and unfair for the first respondent’s Selection Panel to decide on a shortlisting scoring criteria that requires proof of “co-curricular, extra-mural activities and community involvement” because the CV is detailed.
35. He stated that the applicant has never been charged or found guilty of any dishonesty in terms of his submissions made in his CV, thus confirming that the first respondent tacitly consents and does not dispute the veracity of the contents of the applicant’s CV. He indicated that the applicant’s testimony was that he did in fact submit various forms of proof, but the first respondent failed in providing such when subpoenaed for the all the applicant’s submitted documentation for the job application. He indicated that the applicant disputes the substantive factors of the shortlisting criteria as it was developed and applied to him. He stated that the applicant disputes the logic of the scoring criteria for experience for multiple reasons. Firstly, the scoring criteria for experience is fatally flawed because it does not take into account “acting experience of a Principal” but in contrast, the scoring criteria awards 4 points for “Acting experience of a Deputy Principal”. Secondly, the scoring criteria for experience is fundamentally unfair because it makes no sense to award any points to a job candidate who may have acted as Deputy Principal because the post is for a Principal position and not a Deputy Principal position. Thirdly, the first respondent’s Selection Panel did not even implement their flawed scoring criteria.
36. He argued that they disadvantaged the applicant by not acknowledging his known acting experience as the Principal and they advantaged the second respondent by awarding him 4 points for “Acting Experience as a Deputy Principal” when in fact the second respondent did not have experience listed in his CV for Acting Experience as a Deputy Principal. He argued that the problem of scoring a 4 is compounded by the fact that the second respondent’s Selection Panel all scored the incorrect score of 4, resulting in 4 multiplied by 4 Selection Panel members, multiplied by the weighing of 2, which equals to 16 points incorrectly given to the second respondent. He indicated that the same applies to the job candidate who was recommended as the second preferred candidate, Mr. Turton. Mr. Turton was awarded 4 points for experience, but should have received 2 points. If Mr. Turton was correctly scored at the shortlisting, he would not have had the right to proceed to the interview stage of selection and recruitment process.
37. He indicated that the first and the second respondent did not dispute the applicant’s testimony that SGB had appointed him as Acting Principal of the Greenpoint High School in June 2020 and therefore the following principle of law applies “that which is not placed in dispute, stands”. He further indicated that the applicant acted as a Principal in a critical and fundament period where he was called upon to lead. He indicated that the applicant accepted and by all accounts, there was not a single area of concern raised. The applicant was praised and acknowledged by the SGB, from which the Selection Panel was chosen. He stated that the applicant disputes a further rule as adopted by the Selection Panel, as the example provided by the first respondent’s witness, that “if the Deputy Principal of Greenpoint High School applied for the Principal position at Greenpoint High School but forgot to include in her application form that she was the Deputy Principal of Greenpoint High School, the Selection Panel would punish her and exclude their factual knowledge “. In other words, the Selection Panel would ignore their factual knowledge and because the information was not written down on a form or CV, they would deliberately exclude their institutional and factual knowledge. He indicated that the applicant rejects the above logic of the first respondent’s Selection Panel and argues that the institutional knowledge must form part of the Selection Panel’s consideration.
38. He indicated that the Selection Panel knew that the applicant was appointed to act as the Principal for June 2020 yet they failed to include such experience as part of the shortlisting selection criteria, which is in addition to the Selection Panel wrongly scoring the second respondent for experience as well as Mr. Turton.
39. He stated that the applicant has made up a strong case confirming an unfair labour practice for the non-shortlisting arising from the selection and recruitment process for the Principal PL4 position at Greenpoint High School in the Northern Cape. He argued that the first respondent in fact does not have a case. He stated that the first respondent did not dispute that the Selection Panel scoring was flawed in respect of the second respondent. He indicated that the second respondent, Mr. Booysen, also conceded to the following critical aspects put to him in cross-examination: the rule decided by the Selection Panel that everyone must have the same score is flawed because if one panel member makes a fatal error, it is repeated by all 4 panel members and multiply by the weight of the scoring criteria, creating compounding unfairness. The selection criteria as it was applied to other candidates, including the second respondent and Mr. Turton was fatally flawed as they awarded higher points than what they should have received based on shortlisting selection criteria point system; each of Selection Panel members should not have scored 4 points for both the second respondent and Mr. Turton, but rather should have scored the second respondent 3 points and Mr. Turton 2 points for “experience”; the rule that if a candidate fails to specify a factual truth that the panel members were aware of, but it was not included in the CV, the Selection Panel should take that factual awareness and knowledge into account based on the principle of substantive equality; the Selection Panel used the wrong scoring criteria for “experience” and confirmed that the applicant did in fact act as the Principal for the month of June 2020; the Selection Panel should have removed “Acting Deputy Principal” which provided 4 points and should have replaced it with “Acting Principal” for 4 points because the post was for a Principal position.
40. If the applicant was scored based on the above, he would have received 32 points instead of 16 points for “experience”; the shortlisting for “extra mural and community involvement” was not to trick candidates, but to give them high points for high community involvement; confirmed that the job advert does not require “proof” of community involvement, but rather required a “detailed CV” from candidates; confirmed that the applicant did provide a detailed CV; confirmed that the applicant was involved in extra-mural and community involvement at an executive level; the applicant should have received 5 points instead of 1 point for extra-mural and community involvement; had the applicant received the correct points for extra-mural and community involvement he would have received a 40 points instead of 8 points; if the applicant was scored correctly he would have 156 points instead of the 108 points received at the shortlisting; and if the applicant did score 156, he would have been part of the top 2 shortlisted candidates and would have been able to compete for the Principal position at the interview stage.
41. He indicated that in analyzing any evidence, the fundamental feature is only analyzing the content of the testimony, but equally important is assessing the credibility of the witnesses and their testimony. He indicated that in assessing the credibility of the witness, demeanor plays a key role. He further indicated that the Supreme Court of Appeal has provided a guideline that to come to a conclusion on disputed issues, which are: the credibility of the various factual witnesses, their reliability and the probabilities.
THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF SHAUN MAKGOKA: THE PL1 EDUCATOR
42. He testified that he has been an Educator for ten (10) years and five months. He testified that he was just a panel member. He testified that the panel agreed that all Panel members should score the candidate the same. If all Panel members agreed to score the candidate with Afrikaans First Additional Language 5 marks, they all should score the candidate the same mark of 5. If one Panel member scores a candidate contrary, it would be irregular to score the candidate differently as Panel members, they are sitting with the same CV.
43. He further testified that in terms of experience, as he personally understood the process he could not score a person based on what he knows, but based on what was in front of them; otherwise they would not require a CV for shortlisting, it will be also irregular if a Panel members scores the candidate differently. As Panel members, they all sit with one CV. He testified that the applicant did not have the experience in his CV, the based there is a time linked as to how long the person acted in that position. He raised the issue that the applicant acted for 10 days or two weeks, he did not score him 4 because the acting did not happen for six months or a year.
44. He testified that in terms of extra-mural activities and community involvement, the decision that the Panel took was that if a candidate is an executive member in the organization and submitted proof, they will score him 5. He testified that he had nothing against the applicant, he had good relationship with the applicant.
45. He testified under cross examination that the panel came with the rule. He confirmed that if a candidate has teaching experience of seven years and more the score is 1 mark. He confirmed that if a candidate has ten years of Departmental Head, the score is 2 points. He further confirmed that if a candidate has five years’ experience of Deputy Principal, the score is three points. He also confirmed that if a candidate had experience as Acting Deputy Principal s/he would get 4 points. He confirmed that a candidate with experience of Acting Principal will get 5 points. He testified that he would score Mr. Barry Booysen 3 for experience. He testified that Mr. Barry Booysen was scored 4 points and it was wrong. He testified that if everyone wrongly scores a candidate 4 points is a bad thing. He further testified that Mr. Barry Booysen was scored 2 points which is 2 x4 =8 and gave him an advantage.
THE RESPONDENT’S CLOSING ARGUMENTS
46. Mr. Tebogo Obusitse stated that the applicant insisted that he is the best, without even being interviewed, but just because he has attended Primary School and High School in Greenpoint and he is from that community. He indicated that the applicant contradicted himself when he testified that the rule (criteria) which was used to score was flawed, but insisted that he should have been scored more using the same rule. He argued that the applicant was not telling the truth when he testified under oath that they had made a request for his curriculum vitae from the first respondent, the subpoena is proof of the documents they had requested from the first respondent. He stated that the applicant deliberately wanted to mislead the arbitration by providing updated curriculum vitae in the “Bundle A”. He indicated that the applicant provided an updated CV to his representative and still did not provide any attachments as proof to support his activities as an executive member, which he never provided in his application. He argued that the applicant did not tell the truth under oath when he claimed to have attached proof in his application, to an extent that Advocate Williams wanted him to justify that the Panel knew or had the institutional knowledge of activities the applicant was involved in. He indicated that applicant could not even outline to the arbitration which or what proof he specifically attached.
47. He stated that the applicant was given a chance to try and resolve the issue in dispute and the issue was amicably resolved with the applicant requesting to go through the scoring sheets. He argued that even if the scoring points of Mr. Turton had to be reduced as illustrated by the applicant’s representative, the applicant would still not make it to the interview compared to the scores of other candidates. He stated that the second respondent, Mr. Booysen, is qualified for the position of the Principal and has the necessary experience for the position even if he is not from Greenpoint. He indicated that the Panel did not act frivolously, capriciously or unreasonable in their scoring and agreeing with the criteria they used as Mr. Shaun Makgoka has testified, the Panel had no preview as to who the applicants are and what they had attached in their applications until when the envelope with the applications was opened.
48. He stated that section 28 of the Constitution of the Republic of South Africa provides that the best interests of the child are of paramount importance in every matter concerning the child. He indicated that even the courts have held that section 28 (2) is also applicable in promotion disputes in the education sector in the Settlers Agricultural High School v HOD, Limpopo (2002) JOL (10167) (T). He further indicated that the Constitutional Court in the Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) has held that section 28 (2) of the Constitution imposes the obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Statutes must be interpreted and the common law developed in a manner which favour protecting and advancing the interest of children. Courts and arbitrators are bound to give consideration to the effect their decisions will have on children’s lives. He stated that the applicant just wants to be promoted at all costs and the Commissioner is requested to rule for the respondent’s as there was no proof on the balance of probabilities of unfair labour practice from the first respondent, this is the plea from the first respondent.
ANALYSIS
49. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the “LRA”. For the purpose of this award, the proof of the existence of an alleged unfair conduct by the respondent rests on the applicant. The applicant had no witnesses and submitted bundle of documents.
DEFINITION OF PROMOTION
50. Advocate Williams referred me to the Labour Court matter of the Department of Justice v Conciliation in which it defined “promotion” as follows: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to promotion [of an employee]. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. Pursuant to the above definition, it follows that the main or the nature of the dispute is whether or not a failure by the respondent not to shortlist the applicant constituted an unfair labour practice relating to promotion. m, d the es den?
51. Giving rise to this dispute is post of the Principal which became available at Greenpoint High School. It is common cause the position of Principal Level 4 was subsequently advertised and the closing date of which was on 27 March 2020. It is further common cause that at the time when the advert closed on 27 March 2020 the applicant had submitted his application for the post and he only had the experience of Departmental Head, his current position in terms of his CV. It is also common cause that the applicant did not submit any supporting documents in respect of the positions he holds in various community organisations.
52. I wish to record in this regard that the applicant on his own version testified during cross examination that the successful candidate would have then been appointed and to resume with the duties effectively on 01 July 2020. However, the appointment did not take place and the rest of the process was shifted to continue in September 2020. I pause here. The applicant’s version is that he should have been given the opportunity to update his CV to include the experience of Acting Principal before shortlisting. I disagree with the version like this. It is evident that had it not been the postponement of the process, the successful candidate was supposed to have been appointed and resumed the duties on 01 July 2020. Then it means the applicant would not have the opportunity to act as the Principal. I am further of the view that such postponement was not an opportunity to all candidates who applied for the Principal Post Level 4 to update their CVs or correct their mistakes in their initial applications. However, wish to record in this instance that the applicant regard the required experience of added by saying Then the argument ensued that In determining whether the respondent had committed an unfair labour practice, it appears to me that the crux of the attack is whether the set out criteria by the Selection Panel during shortlisting process was fair.
53. It is also common cause that on 10 September 2020 the Selection Panel held a meeting in which shortlisting for the position of the Principal was made. It is not disputed that there were six candidates shortlisted from the shortlisting process that took place on 10 September 2020. It is further not disputed that the applicant was number 7 on the list of the shortlisted candidates. It is further common cause that On 10 September 2020 the Selection Panel agreed on the rules for selection criteria and the rule that is the subject of this dispute states: “All panel members must score the candidate the same score”. I am not persuaded by the evidence before me that the rule to score the candidates the same is unfair. Alternatively, I am not convinced by the applicant’s evidence that the rule to score all candidates the same was irrational. The rule as agreed by the Selection Panel applied to all candidates.
54. In attacking this rule, the applicant merely said the rule was not correct or valid. I am of the view that the attack on the validity of the rule amounts to no justification as the applicant has failed to provide reasons as to why the rule to all Selection Panel members to score each candidate the same points is not correct or valid or unfair. The applicant was asked the question on a number of occasions as to if the rule states that each Selection Panel member must score a candidate 5 points for Afrikaans First Language, what is wrong. He could not simply answer the question until Mr. Obusitse asked it differently. I wish to record that the applicant has conceded during cross examination that if a Panel member gives or scores a candidate five (5) points for Afrikaans 1st Language and that Panel member scores a candidate three or four points will be deviating from the rule. This supports the respondent’s evidence that the rule is correct and valid, there was nothing wrong with the rule. The rule was fair and rational.
55. It appears to me that the rule by the Selection Panel to score a candidate the same was attacked by the applicant on the basis of wrong scoring by panel members. On the issue of experience, the rule requires a panel member to score a candidate who has seven years of teaching one point, HOD with one to ten years of experience 2 points, Deputy Principal with two to five years of experience three (3) points, Deputy Principal Acting four (4) points and the current Principal five (5) points.
56. It is common cause that Mr. Turton, who was the second best candidate, according to his CV, was Deputy Principal from January 2012 until 2013. It is not disputed that Mr. Turton was scored based on the experience as Deputy Principal and was scored four (4) points. This is a clear departure from what the rule agreed upon by the Selection Panel prescribes. Evidently, Mr. Turton was wrongly scored and benefitted from that incorrect score by gaining shortlisting.
57. It is common cause that Mr. Turton in total received one hundred and twelve (112) points. I wish to record in this instance that I concur with the applicant’s version that this wrong scoring to Mr. Turton had disadvantaged him as the panel did not shortlist him. It is not disputed that the applicant was scored in total one hundred and eight (108) points. Mr. Turton in fact was supposed to scored two (2) points for experience as the HOD. By scoring him as Deputy Principal, it meant the applicant was disadvantaged as a result because he was not shortlisted. If Mr. Turton was scored as the HOD, he would have received ninety-six (96) points, which places him outside the required number of candidates to be shortlisted. Having regard to the above, I am of the view that the applicant was clearly denied the opportunity to compete at the interview which was scheduled to take place on 17 September 2020.
58. Finally, the same mistake of wrong scoring was applied to the second respondent, Mr. Booysen. Mr. Booysen was scored one hundred and seventy-six (176) in total because he was wrongly scored four (4) as Deputy Principal. When subtracting eight (8) points from the total of one hundred and seventy-six (176) as extra points, he would remain with the total of one hundred and sixty-eighty (168) points, which would still make him to qualify for shortlisting. The applicant was as a result not disadvantaged by incorrect scoring of Mr. Booysen as it is evident that in any way he would still be shortlisted despite subtracting eight (8) points from the total points he received from the Selection Panel.
59. Evidently, this is a serious or flagrant departure by the SGB from or non-observance of its rule. I am of the view that the applicant’s version that his experience of Acting as a Principal for ten (10) days is misplaced, it would be incorrect or misleading to accept that the Selection Panel erred by not taking into account the experience of the applicant when acting as the Principal. It should be totally rejected. This would mean that I have the authority to amend the rules set out by the Selection Panel, which in my view, I am incompetent to determine that. Nothing stops the Selection Panel to make rules when conducting processes like the shortlisting one, however the rule must be fair. In the present matter, the error committed by the Selection Panel was to score Mr. Booysen and Mr. Turton incorrectly. But that incorrect or wrong scoring does not place the applicant at the advantageous position or commanding role. Evidently, the applicant’s CV submitted at the time the applications for the post of the Principal at Greenpoint High School were closed, the closing date was on 27 March 2020, did not have the required experience of Principal. It is common cause that the applicant is currently employed in the position of Departmental Head.
60. In addition, I wish to record that There is no evidence before me to suggest that the applicant was not qualified for the Principal post. Hence he was appointed to act as the Principal when the Deputy Principal was absent or on sick leave. Given the above, I have no doubt in my mind that the applicant met the criteria as laid down in the advert for the post. The only issue in dispute is the rule agreed upon by the Selection Panel to score all the candidates the same, which disadvantaged the applicant by not gaining shortlisting and ultimately be interviewed. Having regard to the a-foregoing, I am of the view that the Selection Panel correctly scored the applicant in terms of experience.
61. In terms of extra-mural activities and community involvement, it is sufficient to state that the Selection panel agreed to score a candidate one (1) point if the candidate was a member of the community organization, a member with proof to be scored three (3) and Executive with proof to be scored five (5) points. Again, this rule applied to all candidates, it did not apply to the applicant alone. the applicant further attacked the rule alleging that he was wrongly scored because all members of the Selection Panel are well aware of his role in the community. They signed off the documents he submitted to the school in his capacity as a Leader of different organization.
62. I further wish to record that no evidence before me stating that other candidates did not submit proof. The selection Panel had accepted that the applicant is a member of community organization and he was scored one (1) point for it. The applicant claims that he was supposed to receive five (5) points as the panel members are well aware that he holds executive positions is immaterial. Personal knowledge of a candidate should not be used to favour or to prejudice a candidate. I am of the view that the applicant is “double dipping” because he is passionately disputing the rule to score candidates the same score, but at the same time he wanted to benefit from the same rule. The Selection Panel needed to account its decision to score a candidate five (5) points if that candidate holds Executive position in the respective organization. I am not persuaded by the applicant’s reasons to be scored five (5) points on the positions he holds at the respective community organization because anyone can claim to be in those positions. One could not accept that a candidate has obtained a University Degree without substantiating the fact. Nothing stopped the applicant to submit proof thereof that he occupies executive positions in the organizations he mentioned in order to justify the five points. I am of the view that the Selection Panel making a rule in which candidates would be scored more points if they produce proof is fair and justified.
63. I am of the view that by scoring Mr. Turton wrongly or incorrectly is sufficient to conclude that the respondent had denied the applicant an opportunity to compete in the interviews for the Principal post level 4. Subsequently the applicant has succeeded in establishing that the omission by the respondent not to shortlist him amounted to an unfair labour practice. The applicant was entitled to be shortlisted and any decision contrary to it constitutes unfair labour practice. I am not in a position to determine whether the applicant would have succeeded if he was shortlisted and competed for the post at the interview, because the second respondent in anyway was correctly shortlisted. The shortlisting of the second respondent did not prejudice the applicant in any manner. I am therefore satisfied that his appointment has caused no harm to the applicant.
64. Having regard to the above, I am satisfied that the applicant has discharged the onus to establish that the conduct by the respondent not to shortlist him constituted an unfair labour practice. Pursuant to the above conclusion, I am of the view that a failure to shortlist the applicant tantamount to substantive unfairness to promotion.
65. Turning to the appropriate remedy, as already stated, the applicant indicated that one of the following remedies will be appropriate: he should be appointed to the post of Principal, or the appointment of Mr. Booysen to the Principal post be declared null and void, and be awarded compensation of 12 months. Having considered the evidence before me, I am of the view that appointing the applicant to the position of Principal is not an appropriate remedy. The applicant did not attend the interviews and subsequently there is no evidence to support or substantiate the fact on the basis that he does not know if he was the best candidate than the second respondent. In other words, I am not satisfied that the applicant has succeeded to prove that he was the best candidate in comparison to Mr. Booysen. I agree with Mr. Obusitse in this instance that I am required to uphold the provisions of the Constitution of the Republic, which provides that the best interests of a child are of paramount important in all matters. I have concluded that the Selection Panel had wrongly scored Mr. Turton to give him an advantage over the applicant which, in the process, prejudiced the applicant since he was not shortlisted. it is that disadvantage that denied the applicant an opportunity to compete for the post of Principal Level 4. Finally, the fact that the appointment of Mr. Booysen was effected from 01 January 2021, the respondent’s unreasonably delayed in resolution of this dispute, I am of the view that the award of compensation is appropriate in the circumstances. I am of the view that the prejudice suffered by the applicant is equivalent to six months’ salary and subsequently an award of six months is just and equitable. In calculating the correct or appropriate amount, I have considered the applicant’s salary which is R31 397,94 monthly salary x 6 months =R188 387,64.
66. In the premises I find the following award competent.
AWARD
67. I find that the applicant, Shaun Witbooi, has established the existence of unfair labour practice.
68. Following the above conclusion, I find the Department of Education: Northern Cape, to have committed an unfair labour practice as defined in terms of section 186 (2) (a) of the Labour Relations Act, 66 of 1995 as amended “the LRA”/
69. As a result of the above, I order the respondent, Department of Education: Northern Cape, to pay the applicant, Shaun Witbooi, a sum of R188 387 ,64 (one hundred and eighty-eight thousand three hundred and eighty- seven and Rands sixty- four cents) in lieu of the travelling costs.
70. The aforesaid amount is subject to statutory tax deduction obtained from SARS and is payable to the applicant by not later than 15 August 2021.
71. I make no order as to costs.
P. Maitsha
ELRC Panelist
ELRC 302 -20 /21 NW
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