ELRC 318-20/21 KZN
Award Date:
01 September 2021
Text
ARBITRATION AWARD
Case Number: ELRC 318-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 01 September 2021
In the matter between
NAPTOSA obo N Singh
(Union/Applicant)
DEPARTMENT OF HIGHER EDUCATION & TRAINING
(1st Respondent)
And
ALISHA RAMPRASADH
2nd Respondent
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was heard on the 28 of April 2021, 2 June 2021 & 8 August 2021 respectively under the auspices of the Education labour Relations Council. Proceedings were conducted on zoom on the 8th of June 2021.
1.2 The Applicant, Nirvashini Singh was present and represented by Mrs Ishara Dhanook, a NAPTOSA official. The First Respondent, Department of Higher Education and Training (the department) was represented by Mr Thabani Mhlongo. The Second Respondent, Mrs Alisha Ramprasadh was represented by Mr Rishal Jugath.
2. ISSUE TO BE DECIDED
2.1 I have to determine whether the Respondent committed an unfair labour practice relating to promotion by appointing the Second Respondent into post of Acting Senior Lecturer: Springfield Campus.
3. BACKGROUND TO THE ISSUE
3.1 The Applicant referred a dispute relating to promotion to the bargaining council.
3.2 The matter was was conciliated and remained unresolved. A certificate of non – resolution was issued.
3.3 Arbitration proceedings took place on the dates aforementioned.
3.4 The Applicant averred that the First Respondent committed an unfair labour practice when it appointed the Second Respondent into the disputed post.
3.5 The First Respondent stated that the appointment process was conducted fairly.
3.6 Both parties handed in Annexures A – E.
4. SURVEY OF EVIDENCE AND ARGUMENT
4.1 The Applicant took an oath and gave the following evidence:- In summary and of importance in this case she stated the following:- Mr Mncwango is the Campus Manager at Springfield Campus. She was not aware that the post of Senior Lecturer was vacant. She would have applied had she been aware that the post was vacant. She saw the name of the candidate who was appointed into the acting post in the Circular which is Annexure E.
4.2 The disputed post is one level higher that the position she is currently occupying. She made enquiries about the procedure that was followed before the post was filled but Mr Mncwango did not respond to her email. It was the first time that the post was filled in the manner it was filled in this case.
4.3 Posts are filled in compliance with the Respondent’s Acting Policy marked Annexure B. Mr Mncwango disclosed that the Second Respondent is receiving an acting allowance.
4.4 She lodged a grievance regarding the appointment of the Second Respondent and the minutes of the grievance hearing appear on pages 18 & 19 of the Respondent’s bundle B. She was told that the Whatsapp message aappearing on page 16 of Annexure A constituted the advert. It was confirmed that there was no advert for the post. Mr Mncwango stated that two staff members submitted their names in response to the invitation that was conveyed in the Whatsapp message.
4.5 She enquired if the interviews were conducted and the response was in the negative. It is not acceptable that there were no interviews that were conducted but it was just lack of communication, information and transparency in the appointment process. The Whatsapp message did not constitute the advert as per the Selection and Recruitment Process. It is not mentioned in the message that it was an advert. She could not see how it happened that a person could get appointed without proper procedures being followed.
4.6 Her understanding of the contents of the message was that Mr Mncwango was appealing to staff to assist or volunteer to assist. The deadline for submission of names was on the same day the message was conveyed i.e. the 17th of July 2020. The logo of Thekwini College or the Respondent’s does not appear in the message. She did not respond to the message. Mr Mncwango said that the message was the advert.
4.7 The Respondent’s Recruitment and Selection Policy appearing on page 7 of Annexure C is applicable to all posts that are filled at the Respondent. Clause 1.8 reads “Scope of Application. “This Policy will be applicable to all current and prospective employees and all posts are assumed vacant positions.” There are no exclusions. It applies to permanent, contract or temporary employees. It applies in this case.
4.8 None of the platforms listed on page 9 of bundle A were used to advertise the post in question. It was not specified in the message to whom and in what manner the applications should be submitted. The position was not advertised in line with the Recruitment and Selection Policy.
4.9 The disputed post is the acting position and therefore the Respondent’s Policy is applicable. Clause 2.1.2 reads “The practice of acting in senior posts and the payment of an acting allowance is managed in an equitable, fair and transparent manner to enhance the DHET’s performance”.
4.10 Clause 2.2.2(c) reads:- “The employee appointed in writing to act in a senior post, by the delegated authority, shall be paid an acting allowance provided that; no more than two employees are simultaneously being compensated as a result of a single vacancy. There was no indication that the person who was acting in the disputed post at the time was released from her acting duties or that the position was vacant and therefore two people were compensated for the same acting position.
4.11 Clause 2.3.5 reads “Should there be more than two people eligible for the acting post, an interview / selection process may be undertaken to determine the most suitable person for the acting. There were more than two people who submitted their names. Bhogal was on cormobidities leave at the time. She is the current acting Senior Lecturer. The post cannot be vacant if somebody is acting in it. Since it is not vacant an acting allowance should not be paid to the Second Respondent.
4.12 The duration of the acting period was not mentioned in the message in breach of the Respondent’s Acting Policy. The acting allowance should not be paid if two people are acting on the same post. The position was not filled legitimately according to the Respondent’s Acting Policy. Two people were receiving the allowance for the same acting position at the same time.
4.13 The union was not invited to the interview process in breach of the Collective Agreement which is marked Annexure D. The fact that there was no composition of the panel means that the appointment process was not legitimate.
4.14 She is seeking the appointment of the Second Respondent to be set aside and appointment process to be started afresh so that all staff will be given a chance to apply for the acting position.
4.15 Under cross examination she stated the following:- one of the senior lecturers forwarded the screenshot of the message to her. She did not respond to the message because the language that was used was unclear and she was hoping to get clarification later on that day.
4.16 The issue at hand is about the unfair appointment.
4.17 When she was referred to clause 5.1 of the Collective Agreement on Payment of Acting Allowance procedure, she said that the position should be advertised even if in circumstances stipulated in that clause.
4.18 When she was referred to the Collective Agreement titled “Resolution 8 of 2001 Payment of Acting Allowance for an Educator acting in a higher vacant and funded post, she said that she could not confirm whether the appointment was done in writing. She conceded that the collective agreement is applicable to appointments in acting positions.
4.19 When she was referred to clauses 1.3 and 2.1 of the Respondent’s Acting Policy, she said that her opinion was that it does not correlate with the contents of the Whatsapp message because of lack of information relating to the compromise of service delivery, also there is no mention of payment of acting allowance in the message or that the appointee was to be promoted and therefore the appointment process was not transparent. She also said that it was indeed difficult at the time because of Covid 19 situation however the contract lecturer had taken over Bhogal’s class and learning was continuing.
4.20 She confirmed that the delegated authority can appoint someone to act in the post in terms of clause 2.2.2 of the Respondent’s Acting Policy. It was communicated to staff that the post was vacant. Several employees were at not at work due to Covid 19.
4.21 When she was referred to clause 2.3 and asked to confirm that it is the duty of the delegated authority to appoint, her response was that the appointment process was not fair, consistent and transparent.
4.22 She conceded that in terms of clauses 2.5 & 2.5.1 of the Respondent’s Acting Policy the Respondent can appoint under urgent / critical circumstances.
4.23 It was not urgent / critical circumstances in this case because teaching and learning was taking place and the contract teacher had been appointed. What was happening at the time was critical for everyone.
4.24 Business Studies: Springfield Campus has one Head of Department, one permanently appointed senior lecturer and two acting lecturers. Boghal was the acting senior lecturer.
4.25 The country was under lockdown 3 at the time and about 6+ lecturers had comorbidities. Boghal was absent because of health issues. She was in post level 2 at the time. Her (Mrs Singh’s) understanding of the Whatsapp message was that the Mr Mncwango was looking for lectures to assist. The message was also ambiguous and confusing. It was ambiguous because it was also mentioned that they were looking for any suitable person performing management functions.
4.26 The formal mode of communication at the campus is emails and also informal (Whatsapp) however she is not on the campus Whatsapp group. Whatsapp communication has created communication problems.
4.27 During lockdown level 3 staff had face to face meetings.
4.28 Acting positions were advertised externally previously. She holds post level 1 position. She had acted as a senior lecturer in the same department previously.
4.29 It would not be necessary to advertise the acting position in question in the Respondent’s Vacancy Circular.
4.30 She disputed that the position was properly advertised as per the Respondent’s Acting Policy and went to say that screen shots of genuine adverts with the Respondent’s logo were communicated on Whatsapp previously.
4.31 On re- examination she stated the following:- there was no information that the acting post was vacant. Two individuals were acting in the same post and they were getting paid which was in breach of the Respondent’s Policy. There was no obligation for her to respond to the message. She did not consider the Whatsapp message an advert.
4.32 Whatsapp communication is not electronic means of communication because it does not specify where and how the applications should be submitted.
4.33 The Respondent is bound by the Recruitment and selection Policy but it was not complied with in this case. All the requirements of the advert should have been stated in the advert but the campus manager was asking for a name to be forwarded and also the deadline for submission of applications would not have been the same day if the message was the advert because applicants would have needed to complete their application forms and send all the required documents.
4.34 It would be unreasonable to ask applicants to respond to the advert on the same day, perhaps the next day would have given them reasonable time to do so .Also the criteria of “urgency” that was applied should have been met.
4.35 Bhogal was performing her management functions at the time and it was not necessary to replace her because there was no urgency and the contract lecturer was appointed for her workload.
The Respondent’s case
4.36 Andile Mncwango testified as the Respondent’s first witness. In summary he stated the following:- He occupies a position of campus manager at Springfield campus. His responsibilities include ensuring all teaching and learning is taking place at all cost at the campus.
4.37 The Whatsapp message was circulated to all staff because of the crisis which was caused by Covid 19. Some of the staff members with comorbidities were on leave and they wanted someone to assist, perform a function within the scope of Bhogal. Bhogal was one of the staff with comorbidities. The message was not an advert but communication made in writing.
4.38 The purpose of the Whatsapp communication was to get a candidate who was willing to assist and suitably qualified for a post level 2.
4.39 The candidate was to be recommended to the accounting officer for possible appointment. The communication was forwarded to all staff. He received two questions of clarity from staff. One staff member asked if teaching Engineering was possible whilst assisting with Business Studies and another asked if he could indicate his willingness to assist. He (Mncwango) responded to both questions and also advised that the accounting officer was to take a final decision on the matter. The communication was intended to nominate the person. It was not an advert. It was in line with the Collective Agreement for Payment of Acting Allowance.
4.40 Under normal circumstances it is tradition to advertise the acting post in line with the Selection and Recruitment Policy.
4.41 Two names were forwarded and both candidates were suitably qualified in terms of their qualifications. One candidate had 6 months relevant experience. The second candidate was the Second Respondent. She had more than 3 years experience and she was recommended for the post. The post was occupied by a person with comorbidities. It was unknown when Bhogal would remain on leave and the appointment was based on that urgency. She was on long leave and teaching and learning had to take place.
4.42 The Respondent considered both its Acting Policy and the Policy on Recruitment and Selection for Lecturing Staff in this case. The two documents correlate. Reference is made to clauses 1.3, 2.2.1, 2.2.2, 2.5 & 2.5.1 in this regard. What was important at the time was to ensure that effective learning was taking place. The Respondent’s Acting Policy supports the decision that was taken. The recommended candidate was appointed by the Accounting Officer, the letter of acting was issued to the second Respondent and acting allowance was paid to her. The recommendation was made in compliance with the selection process and due to urgency of the situation.
4.43 The College Principal is the delegated authority. The entire process was conducted fairly. The Applicant did not submit her name for consideration for the post.
4.44 Under cross examination, he said the following;- He was asking for the names of people who were interested to act in the message and HR was to take the process further look at their details such as qualifications and experience in their personnel files.
4.45 He had not followed the same appointment process before and he had served in the position of campus manager for 2 years. The advert was not sent out because it was a case of critical and urgent circumstances. Lecturers needed supervision and in the absence of Boghal there would have been work overload for other managers. That would have resulted in ineffective operations in the campus.
4.46 The arrangement was to cater for Bhogal’s work and students suffered due to lack of teaching and learning. It is incorrect that the lecturer Mavundla was appointed for Bhogal’s work. The Whatsapp message was for lecturing and management function. Post level 2 goes with both teaching and management load.
4.47 The Second Respondent is carrying out lecturing and management tasks for Bhogal. Bhogal is the Acting Senior lecturer. She was on leave which means no one was acting on the post at the time.
4.48 There were two other lecturers who were on leave with comorbidities but he did not send a message to staff asking for assistance with their work because Bhogal was the only manager who went on leave and the Respondent cannot use data base for management position. They use data base for other positions.
4.49 Two candidates had forwarded their names but only one was eligible for the acting post. All the managers were made aware of the acting position. The information was sent to senior lecturers who were available and they confirmed that all lecturers were made aware of the acting position.
4.50 The words “advert” and “vacancy” are not mentioned anywhere in the Whatsapp message.
4.51 The deadline for submission of names was on the same day he requested names to be forwarded.
4.52 It was allowed in the circumstances of this case not to follow the Recruitment and Selection Policy in its entirety. No one had gone on leave because of comorbidities hence they did not follow the tradition of the College which is to send out the advert for the acting post.
4.53 There were no interviews. Labour is represented in the interviews.
4.54 Bhogal was not receiving acting allowance whilst she was at home. She was not performing the post functions from home and therefore the Second Respondent was appointed to the post. His knowledge was that HR facilitated the appointment to the post and Bhogal’s appointment was terminated.
4.55 When it was put to him that Mr Chinasamy was also with comorbidity, his response was that Mr Chinasamy was not on the same level as Bhogal but on level 3. There was no one on post level 2 with cormobidity.
4.56 On re-examination he stated the following:- the post was regarded as “extremely urgent and critical” because post level 2 is immediate supervisor of post level 1. It was both lecturing and management level.
4.57 No one can be selected from data base for post level 2. Data base cannot be used for post level 2 and higher levels because people on data base are not currently employed by the Respondent. The person must be employed for him or her to act on the post. The Respondent’s Selection and Recruitment Policy was not followed in this case due to the provisions of the of the Respondent’s Acting Policy.
4.58 The union was not invited because there were no interviews that were conducted before the appointment was made. There were no two candidates who were acting on the post. Bhogal acted and went on leave due to cormobidities. Rampersad was appointed whilst she was on leave.
4.59 Nokuthula Pam Majali testified as the Respondent’s second witness. In summary and of importance in this case she stated that she occupies a position of Deputy Principal; Corporate Services since January 2017. Her responsibilities include overseeing HR department.
4.60 She gave evidence in corroboration of that given by Mr Mncwango that there were employees who were with comorbidities and remained at home including Bhogal at the time of the appointment process, and also that the teaching and learning had to continue hence the Second Respondent’s appointment.
4.61 She said that Mr Mncwango was asked by the Principal to nominate persons for the acting post and the Principal invoked clause 2.5.1 of the Respondent’s Acting Policy to deal with the urgent and critical sitiation which prevailed at the time.
4.62 Under cross examination she stated that the person who was appointed into the disputed post was receiving the acting allowance. The post was not vacant because it was occupied by Bhogal.
4.63 Clause 2.2 applies to a vacant post and clause 2.5 applies to a non vacant post. It is clause 2.5 that applies to the disputed post.
4.64 On re-examination she said that the appointment of the Second Respondent was not in breach of the Respondent’s Acting Policy.
4.65 It was the Applicant’s responsibility to apply in response to the invitation on Whatsapp communication.
4.66 The Respondent does not send out the advert but ensures that communication is sent out to the staff members inviting them to apply in cases of urgent / critical circumstances. In this case it was the abnormal situation of Covid 19 that caused the Respondent not to send out the advert.
4.67 The communication was sent out but the Applicant did not apply for the disputed post.
4.68 Bhogal was never appointed remotely as a senior lecturer. The Respondent was dealing with Covid 19 which caught everyone unaware. The Respondent did not have tools to give to Bhogal or any other person to work remotely from home.
4.69 Upasana Bhogal testified as the Second Respondent’s only witness. She stated the following:- She started working for the Respondent as Level 1 lecturer in Business Studies department since 2004. She occupies level 1 position and was acting Senior Lecturer on level 2 from 2014 overseeing Educare and Communication within the Department.
4.70 She applied for comorbidity concession in 2020 and continued working remotely as a senior Lecturer. She returned to the campus in October 2020 and was receiving acting allowance until December 2020.
4.71 Under cross examination she stated the following:- She was not told to step down from the acting position during the time when she was working remotely from home. She sent the documents pertaining to her ill-health to the Respondent. She performed those duties that she could perform remotely.
4.72 Another person took over her lecturing load and she performed her other functions. She continued receiving the acting allowance from October 2020 until January 2021. She heard from the grapevine that the Second Respondent was also receiving the acting allowance.
4.73 The urgency in this case was the lecturing component of her functions but it was fulfilled by the lecturer who was appointed for that purpose. The Respondent could have contacted her if there was something that needed to be done whilst she was on concession leave.
ARGUMENT
APPLICANT’S ARGUMENT
4.74 The Applicant argued in her written submissions marked Annexure F that the appointment process was flawed.
RESPONDENTS’ ARGUMENT
4.75 Both Respondents argued in their written submissions marked Annexures G & H respectively that the First Respondent acted fairly in appointing the Second Respondent to the acting post of Senior Lecturer: Springfield Campus.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
4.76 I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent committed an unfair labour practice in appointing the Second Respondent to the acting post of Senior Lecturer: Springfield Campus.
4.77 The Applicant bears the onus of proving that the First Respondent committed an unfair labour practice.
4.78 In deciding on an unfair labour practice the courts have clarified the test to be that of fairness. In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
4.79 It is common cause that the Respondent did not follow the Recruitment and Selection Policy in the process of filling the acting post.
4.80 It is common cause that the acting position was not advertised but the Whatsapp message was sent inviting interested people to submit their names.
4.81 The Respondent stated that the appointment in this case was made due to urgent / critical circumstances which were caused by Covid 19.
4.82 I am satisfied, based on the evidence that acting appointments in the Respondent are governed by the Respondent’s Acting Appointment Policy which is the document marked Annexure B. It was unchallenged evidence that the Second Respondent met the requirements for the post.
4.83 It was the evidence that the post was not vacant. The Second Respondent’s witness confirmed this fact when she testified that she received the acting allowance until January 2021. I am therefore satisfied, based on the evidence, that it is clause 2.5 of the Respondent’s Acting Policy that is applicable in this case. The clause applies to non – vacant posts and reads as follows:-
“Urgent / Critical circumstances requiring acting in non- vacant Academic posts
This only applies in circumstances where a substantive post holder’s absence may impact negatively on teaching and learning.
2.5.1 Only the delegated authority has the power to appoint lecturing staff and compensate them for acting in senior or lateral posts that are not vacant. The Chief Financial Officer and College Council must be consulted to confirm funding........”
4.84 The Respondent’s evidence was that it was Covid 19 situation which led to the appointment of the Second Respondent because learning and teaching had to continue whilst Bhogal was on concession leave.
4.85 It was the evidence that learning and teaching was continuing whilst Bhogal was on concession leave. The parties stated that another lecturer was appointed and had taken over the teaching load of Bhogal.
4.86 The Respondent stated that it needed a person who was to perform management function of Bhogal. In her evidence in chief Bhogal said that the contract lecturer Mavuso was teaching her class, she (Bhogal) was performing management function remotely from home and the Respondent could have contacted her if there was something that needed to be done whilst she was on leave. Neither of the two Respondents disputed this piece of the evidence during her cross examination.
4.87 The question that I ask myself is: “what additional duties the Second Respondent was needed to perform if Bhogal was performing the management function and the other contract lecturer was teaching her class?” It was open to both Respondents to present this piece of the evidence at arbitration but they did not. Perhaps they could have produced management reports or presented evidence to the contrary to that which was given by the Second Respondent’s witness, namely, Bhogal.
4.88 Clause 2.5 of the Respondent’s Policy only makes reference to teaching and learning. Nothing is said about management function. I am persuaded therefore that this clause is not applicable in the circumstances of this case.
4.89 Whilst there is no evidence that the Respondent committed an unfair labour practice against the unsuccessful employee (I say this because the Applicant had not applied for the acting position in question) the First Respondent has failed to produce satisfactory evidence to support its version that the appointment of the Second Respondent into the acting position of Senior Lecturer was due to critical / urgent circumstances requiring acting.
4.90 The undisputed evidence that Bhogal was receiving acting allowance until January 2021 tends to support the Applicant’s version. I say this because the Respondent would have terminated Bhogal’s acting appointment if she was no longer performing management functions at the time she was on concession leave but it did not until January 2021. This is persuasive that there was nothing critical or urgent warranting the appointment of the Second Respondent.
4.91 The evidence is overwhelming in this case that the appointment into the acting position was not a transparent and fair process. The Respondent could have adopted a formal approach, send emails to the staff inviting them to apply for the disputed post so to persuade about the credibility of the selection process. It is not mentioned in the Whatsapp message that staff was invited to apply for the vacant post or that the person who submitted his or her name was to receive acting allowance. I ask myself a question:” how was staff expected to know that the message was about filling the acting post for them to apply if this information was not included in the Whatsapp message?”
4.92 Clearly one cannot be slotted into a position that is occupied by another person. The explanation given by the First Respondent for the appointment of the Second Respondent is not satisfactory. In the circumstances it is clear that the selection panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and with bias in appointing a person to act in a position already occupied by another person and whose functions were being performed.
4.93 One can easily be persuaded to conclude that the selection panel acted in a manner which sought to benefit the Second Respondent who indeed benefited whilst the incumbent in the acting post was also receiving the acting allowance until January 2021. The process resulted in the exclusion of other employees who would not have known that there was an acting position to fill and also about the invitation to staff to apply for the post. The conduct was clearly unfair and it is resulted in the Second Respondent receiving the acting allowance which is a benefit.
4.94 Considering all of the above, I conclude that the appointment into the acting position of a Senior Lecturer was flawed in this case and the conduct constituted an unfair labour practice relating to the benefit,
4.95 The Applicant sought the acting appointment process to be started afresh.
4.96 Central to appointments is the principle that the courts and arbitrators alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. See Provincial Administration Western cape (Department of Health and Social Services) v Bikwani and Others (2002) 23 ILJ 761 (LC) at paras 29 -30. .
4.97 In the case of Noonan v safety and Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9 [2012] BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012) the court considered “fairness of the process” as a whole in circumstances where the successful candidate had failed to disclose information which affected his suitability for the position. Whilst the Applicant had not applied for the post, I have considered the fairness of the process as a whole and I am led to conclude that good cause does not exist to justify non interference with the Respondent’s decision to appoint the Second Respondent and give her the acting allowance.
4.98 In circumstances where it is blatantly clear that the conduct of the Respondent, in its entirety, was unlawful, unfair and capricious, coupled with bias, I feel that the appropriate relief will be an order setting aside the acting appointment of the Second Respondent into the position of A Senior Lecturer which will result in the Second Respondent not receiving the acting allowance “benefit”. Fairness is the overriding factor.
4.99 The Respondent is advised that it can start afresh the appointment process to fill the acting position of a Senior Lecturer, to allow all interested employees an opportunity to compete for the position.
5. AWARD
5.1 The First Respondent, namely, Department of Education KZN committed an unfair labour practice relating to a benefit by appointing the Second Respondent into the post of Senior Lecturer: Springfield Campus and paying her an acting allowance;
5.2 The First Respondent is ordered to set aside the Second Respondent’s acting appointment.
NONHLANHLA DUBAZANE
ELRC ARBITRATOR
Case Number: ELRC 318-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 01 September 2021
In the matter between
NAPTOSA obo N Singh
(Union/Applicant)
DEPARTMENT OF HIGHER EDUCATION & TRAINING
(1st Respondent)
And
ALISHA RAMPRASADH
2nd Respondent
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was heard on the 28 of April 2021, 2 June 2021 & 8 August 2021 respectively under the auspices of the Education labour Relations Council. Proceedings were conducted on zoom on the 8th of June 2021.
1.2 The Applicant, Nirvashini Singh was present and represented by Mrs Ishara Dhanook, a NAPTOSA official. The First Respondent, Department of Higher Education and Training (the department) was represented by Mr Thabani Mhlongo. The Second Respondent, Mrs Alisha Ramprasadh was represented by Mr Rishal Jugath.
2. ISSUE TO BE DECIDED
2.1 I have to determine whether the Respondent committed an unfair labour practice relating to promotion by appointing the Second Respondent into post of Acting Senior Lecturer: Springfield Campus.
3. BACKGROUND TO THE ISSUE
3.1 The Applicant referred a dispute relating to promotion to the bargaining council.
3.2 The matter was was conciliated and remained unresolved. A certificate of non – resolution was issued.
3.3 Arbitration proceedings took place on the dates aforementioned.
3.4 The Applicant averred that the First Respondent committed an unfair labour practice when it appointed the Second Respondent into the disputed post.
3.5 The First Respondent stated that the appointment process was conducted fairly.
3.6 Both parties handed in Annexures A – E.
4. SURVEY OF EVIDENCE AND ARGUMENT
4.1 The Applicant took an oath and gave the following evidence:- In summary and of importance in this case she stated the following:- Mr Mncwango is the Campus Manager at Springfield Campus. She was not aware that the post of Senior Lecturer was vacant. She would have applied had she been aware that the post was vacant. She saw the name of the candidate who was appointed into the acting post in the Circular which is Annexure E.
4.2 The disputed post is one level higher that the position she is currently occupying. She made enquiries about the procedure that was followed before the post was filled but Mr Mncwango did not respond to her email. It was the first time that the post was filled in the manner it was filled in this case.
4.3 Posts are filled in compliance with the Respondent’s Acting Policy marked Annexure B. Mr Mncwango disclosed that the Second Respondent is receiving an acting allowance.
4.4 She lodged a grievance regarding the appointment of the Second Respondent and the minutes of the grievance hearing appear on pages 18 & 19 of the Respondent’s bundle B. She was told that the Whatsapp message aappearing on page 16 of Annexure A constituted the advert. It was confirmed that there was no advert for the post. Mr Mncwango stated that two staff members submitted their names in response to the invitation that was conveyed in the Whatsapp message.
4.5 She enquired if the interviews were conducted and the response was in the negative. It is not acceptable that there were no interviews that were conducted but it was just lack of communication, information and transparency in the appointment process. The Whatsapp message did not constitute the advert as per the Selection and Recruitment Process. It is not mentioned in the message that it was an advert. She could not see how it happened that a person could get appointed without proper procedures being followed.
4.6 Her understanding of the contents of the message was that Mr Mncwango was appealing to staff to assist or volunteer to assist. The deadline for submission of names was on the same day the message was conveyed i.e. the 17th of July 2020. The logo of Thekwini College or the Respondent’s does not appear in the message. She did not respond to the message. Mr Mncwango said that the message was the advert.
4.7 The Respondent’s Recruitment and Selection Policy appearing on page 7 of Annexure C is applicable to all posts that are filled at the Respondent. Clause 1.8 reads “Scope of Application. “This Policy will be applicable to all current and prospective employees and all posts are assumed vacant positions.” There are no exclusions. It applies to permanent, contract or temporary employees. It applies in this case.
4.8 None of the platforms listed on page 9 of bundle A were used to advertise the post in question. It was not specified in the message to whom and in what manner the applications should be submitted. The position was not advertised in line with the Recruitment and Selection Policy.
4.9 The disputed post is the acting position and therefore the Respondent’s Policy is applicable. Clause 2.1.2 reads “The practice of acting in senior posts and the payment of an acting allowance is managed in an equitable, fair and transparent manner to enhance the DHET’s performance”.
4.10 Clause 2.2.2(c) reads:- “The employee appointed in writing to act in a senior post, by the delegated authority, shall be paid an acting allowance provided that; no more than two employees are simultaneously being compensated as a result of a single vacancy. There was no indication that the person who was acting in the disputed post at the time was released from her acting duties or that the position was vacant and therefore two people were compensated for the same acting position.
4.11 Clause 2.3.5 reads “Should there be more than two people eligible for the acting post, an interview / selection process may be undertaken to determine the most suitable person for the acting. There were more than two people who submitted their names. Bhogal was on cormobidities leave at the time. She is the current acting Senior Lecturer. The post cannot be vacant if somebody is acting in it. Since it is not vacant an acting allowance should not be paid to the Second Respondent.
4.12 The duration of the acting period was not mentioned in the message in breach of the Respondent’s Acting Policy. The acting allowance should not be paid if two people are acting on the same post. The position was not filled legitimately according to the Respondent’s Acting Policy. Two people were receiving the allowance for the same acting position at the same time.
4.13 The union was not invited to the interview process in breach of the Collective Agreement which is marked Annexure D. The fact that there was no composition of the panel means that the appointment process was not legitimate.
4.14 She is seeking the appointment of the Second Respondent to be set aside and appointment process to be started afresh so that all staff will be given a chance to apply for the acting position.
4.15 Under cross examination she stated the following:- one of the senior lecturers forwarded the screenshot of the message to her. She did not respond to the message because the language that was used was unclear and she was hoping to get clarification later on that day.
4.16 The issue at hand is about the unfair appointment.
4.17 When she was referred to clause 5.1 of the Collective Agreement on Payment of Acting Allowance procedure, she said that the position should be advertised even if in circumstances stipulated in that clause.
4.18 When she was referred to the Collective Agreement titled “Resolution 8 of 2001 Payment of Acting Allowance for an Educator acting in a higher vacant and funded post, she said that she could not confirm whether the appointment was done in writing. She conceded that the collective agreement is applicable to appointments in acting positions.
4.19 When she was referred to clauses 1.3 and 2.1 of the Respondent’s Acting Policy, she said that her opinion was that it does not correlate with the contents of the Whatsapp message because of lack of information relating to the compromise of service delivery, also there is no mention of payment of acting allowance in the message or that the appointee was to be promoted and therefore the appointment process was not transparent. She also said that it was indeed difficult at the time because of Covid 19 situation however the contract lecturer had taken over Bhogal’s class and learning was continuing.
4.20 She confirmed that the delegated authority can appoint someone to act in the post in terms of clause 2.2.2 of the Respondent’s Acting Policy. It was communicated to staff that the post was vacant. Several employees were at not at work due to Covid 19.
4.21 When she was referred to clause 2.3 and asked to confirm that it is the duty of the delegated authority to appoint, her response was that the appointment process was not fair, consistent and transparent.
4.22 She conceded that in terms of clauses 2.5 & 2.5.1 of the Respondent’s Acting Policy the Respondent can appoint under urgent / critical circumstances.
4.23 It was not urgent / critical circumstances in this case because teaching and learning was taking place and the contract teacher had been appointed. What was happening at the time was critical for everyone.
4.24 Business Studies: Springfield Campus has one Head of Department, one permanently appointed senior lecturer and two acting lecturers. Boghal was the acting senior lecturer.
4.25 The country was under lockdown 3 at the time and about 6+ lecturers had comorbidities. Boghal was absent because of health issues. She was in post level 2 at the time. Her (Mrs Singh’s) understanding of the Whatsapp message was that the Mr Mncwango was looking for lectures to assist. The message was also ambiguous and confusing. It was ambiguous because it was also mentioned that they were looking for any suitable person performing management functions.
4.26 The formal mode of communication at the campus is emails and also informal (Whatsapp) however she is not on the campus Whatsapp group. Whatsapp communication has created communication problems.
4.27 During lockdown level 3 staff had face to face meetings.
4.28 Acting positions were advertised externally previously. She holds post level 1 position. She had acted as a senior lecturer in the same department previously.
4.29 It would not be necessary to advertise the acting position in question in the Respondent’s Vacancy Circular.
4.30 She disputed that the position was properly advertised as per the Respondent’s Acting Policy and went to say that screen shots of genuine adverts with the Respondent’s logo were communicated on Whatsapp previously.
4.31 On re- examination she stated the following:- there was no information that the acting post was vacant. Two individuals were acting in the same post and they were getting paid which was in breach of the Respondent’s Policy. There was no obligation for her to respond to the message. She did not consider the Whatsapp message an advert.
4.32 Whatsapp communication is not electronic means of communication because it does not specify where and how the applications should be submitted.
4.33 The Respondent is bound by the Recruitment and selection Policy but it was not complied with in this case. All the requirements of the advert should have been stated in the advert but the campus manager was asking for a name to be forwarded and also the deadline for submission of applications would not have been the same day if the message was the advert because applicants would have needed to complete their application forms and send all the required documents.
4.34 It would be unreasonable to ask applicants to respond to the advert on the same day, perhaps the next day would have given them reasonable time to do so .Also the criteria of “urgency” that was applied should have been met.
4.35 Bhogal was performing her management functions at the time and it was not necessary to replace her because there was no urgency and the contract lecturer was appointed for her workload.
The Respondent’s case
4.36 Andile Mncwango testified as the Respondent’s first witness. In summary he stated the following:- He occupies a position of campus manager at Springfield campus. His responsibilities include ensuring all teaching and learning is taking place at all cost at the campus.
4.37 The Whatsapp message was circulated to all staff because of the crisis which was caused by Covid 19. Some of the staff members with comorbidities were on leave and they wanted someone to assist, perform a function within the scope of Bhogal. Bhogal was one of the staff with comorbidities. The message was not an advert but communication made in writing.
4.38 The purpose of the Whatsapp communication was to get a candidate who was willing to assist and suitably qualified for a post level 2.
4.39 The candidate was to be recommended to the accounting officer for possible appointment. The communication was forwarded to all staff. He received two questions of clarity from staff. One staff member asked if teaching Engineering was possible whilst assisting with Business Studies and another asked if he could indicate his willingness to assist. He (Mncwango) responded to both questions and also advised that the accounting officer was to take a final decision on the matter. The communication was intended to nominate the person. It was not an advert. It was in line with the Collective Agreement for Payment of Acting Allowance.
4.40 Under normal circumstances it is tradition to advertise the acting post in line with the Selection and Recruitment Policy.
4.41 Two names were forwarded and both candidates were suitably qualified in terms of their qualifications. One candidate had 6 months relevant experience. The second candidate was the Second Respondent. She had more than 3 years experience and she was recommended for the post. The post was occupied by a person with comorbidities. It was unknown when Bhogal would remain on leave and the appointment was based on that urgency. She was on long leave and teaching and learning had to take place.
4.42 The Respondent considered both its Acting Policy and the Policy on Recruitment and Selection for Lecturing Staff in this case. The two documents correlate. Reference is made to clauses 1.3, 2.2.1, 2.2.2, 2.5 & 2.5.1 in this regard. What was important at the time was to ensure that effective learning was taking place. The Respondent’s Acting Policy supports the decision that was taken. The recommended candidate was appointed by the Accounting Officer, the letter of acting was issued to the second Respondent and acting allowance was paid to her. The recommendation was made in compliance with the selection process and due to urgency of the situation.
4.43 The College Principal is the delegated authority. The entire process was conducted fairly. The Applicant did not submit her name for consideration for the post.
4.44 Under cross examination, he said the following;- He was asking for the names of people who were interested to act in the message and HR was to take the process further look at their details such as qualifications and experience in their personnel files.
4.45 He had not followed the same appointment process before and he had served in the position of campus manager for 2 years. The advert was not sent out because it was a case of critical and urgent circumstances. Lecturers needed supervision and in the absence of Boghal there would have been work overload for other managers. That would have resulted in ineffective operations in the campus.
4.46 The arrangement was to cater for Bhogal’s work and students suffered due to lack of teaching and learning. It is incorrect that the lecturer Mavundla was appointed for Bhogal’s work. The Whatsapp message was for lecturing and management function. Post level 2 goes with both teaching and management load.
4.47 The Second Respondent is carrying out lecturing and management tasks for Bhogal. Bhogal is the Acting Senior lecturer. She was on leave which means no one was acting on the post at the time.
4.48 There were two other lecturers who were on leave with comorbidities but he did not send a message to staff asking for assistance with their work because Bhogal was the only manager who went on leave and the Respondent cannot use data base for management position. They use data base for other positions.
4.49 Two candidates had forwarded their names but only one was eligible for the acting post. All the managers were made aware of the acting position. The information was sent to senior lecturers who were available and they confirmed that all lecturers were made aware of the acting position.
4.50 The words “advert” and “vacancy” are not mentioned anywhere in the Whatsapp message.
4.51 The deadline for submission of names was on the same day he requested names to be forwarded.
4.52 It was allowed in the circumstances of this case not to follow the Recruitment and Selection Policy in its entirety. No one had gone on leave because of comorbidities hence they did not follow the tradition of the College which is to send out the advert for the acting post.
4.53 There were no interviews. Labour is represented in the interviews.
4.54 Bhogal was not receiving acting allowance whilst she was at home. She was not performing the post functions from home and therefore the Second Respondent was appointed to the post. His knowledge was that HR facilitated the appointment to the post and Bhogal’s appointment was terminated.
4.55 When it was put to him that Mr Chinasamy was also with comorbidity, his response was that Mr Chinasamy was not on the same level as Bhogal but on level 3. There was no one on post level 2 with cormobidity.
4.56 On re-examination he stated the following:- the post was regarded as “extremely urgent and critical” because post level 2 is immediate supervisor of post level 1. It was both lecturing and management level.
4.57 No one can be selected from data base for post level 2. Data base cannot be used for post level 2 and higher levels because people on data base are not currently employed by the Respondent. The person must be employed for him or her to act on the post. The Respondent’s Selection and Recruitment Policy was not followed in this case due to the provisions of the of the Respondent’s Acting Policy.
4.58 The union was not invited because there were no interviews that were conducted before the appointment was made. There were no two candidates who were acting on the post. Bhogal acted and went on leave due to cormobidities. Rampersad was appointed whilst she was on leave.
4.59 Nokuthula Pam Majali testified as the Respondent’s second witness. In summary and of importance in this case she stated that she occupies a position of Deputy Principal; Corporate Services since January 2017. Her responsibilities include overseeing HR department.
4.60 She gave evidence in corroboration of that given by Mr Mncwango that there were employees who were with comorbidities and remained at home including Bhogal at the time of the appointment process, and also that the teaching and learning had to continue hence the Second Respondent’s appointment.
4.61 She said that Mr Mncwango was asked by the Principal to nominate persons for the acting post and the Principal invoked clause 2.5.1 of the Respondent’s Acting Policy to deal with the urgent and critical sitiation which prevailed at the time.
4.62 Under cross examination she stated that the person who was appointed into the disputed post was receiving the acting allowance. The post was not vacant because it was occupied by Bhogal.
4.63 Clause 2.2 applies to a vacant post and clause 2.5 applies to a non vacant post. It is clause 2.5 that applies to the disputed post.
4.64 On re-examination she said that the appointment of the Second Respondent was not in breach of the Respondent’s Acting Policy.
4.65 It was the Applicant’s responsibility to apply in response to the invitation on Whatsapp communication.
4.66 The Respondent does not send out the advert but ensures that communication is sent out to the staff members inviting them to apply in cases of urgent / critical circumstances. In this case it was the abnormal situation of Covid 19 that caused the Respondent not to send out the advert.
4.67 The communication was sent out but the Applicant did not apply for the disputed post.
4.68 Bhogal was never appointed remotely as a senior lecturer. The Respondent was dealing with Covid 19 which caught everyone unaware. The Respondent did not have tools to give to Bhogal or any other person to work remotely from home.
4.69 Upasana Bhogal testified as the Second Respondent’s only witness. She stated the following:- She started working for the Respondent as Level 1 lecturer in Business Studies department since 2004. She occupies level 1 position and was acting Senior Lecturer on level 2 from 2014 overseeing Educare and Communication within the Department.
4.70 She applied for comorbidity concession in 2020 and continued working remotely as a senior Lecturer. She returned to the campus in October 2020 and was receiving acting allowance until December 2020.
4.71 Under cross examination she stated the following:- She was not told to step down from the acting position during the time when she was working remotely from home. She sent the documents pertaining to her ill-health to the Respondent. She performed those duties that she could perform remotely.
4.72 Another person took over her lecturing load and she performed her other functions. She continued receiving the acting allowance from October 2020 until January 2021. She heard from the grapevine that the Second Respondent was also receiving the acting allowance.
4.73 The urgency in this case was the lecturing component of her functions but it was fulfilled by the lecturer who was appointed for that purpose. The Respondent could have contacted her if there was something that needed to be done whilst she was on concession leave.
ARGUMENT
APPLICANT’S ARGUMENT
4.74 The Applicant argued in her written submissions marked Annexure F that the appointment process was flawed.
RESPONDENTS’ ARGUMENT
4.75 Both Respondents argued in their written submissions marked Annexures G & H respectively that the First Respondent acted fairly in appointing the Second Respondent to the acting post of Senior Lecturer: Springfield Campus.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
4.76 I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent committed an unfair labour practice in appointing the Second Respondent to the acting post of Senior Lecturer: Springfield Campus.
4.77 The Applicant bears the onus of proving that the First Respondent committed an unfair labour practice.
4.78 In deciding on an unfair labour practice the courts have clarified the test to be that of fairness. In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
4.79 It is common cause that the Respondent did not follow the Recruitment and Selection Policy in the process of filling the acting post.
4.80 It is common cause that the acting position was not advertised but the Whatsapp message was sent inviting interested people to submit their names.
4.81 The Respondent stated that the appointment in this case was made due to urgent / critical circumstances which were caused by Covid 19.
4.82 I am satisfied, based on the evidence that acting appointments in the Respondent are governed by the Respondent’s Acting Appointment Policy which is the document marked Annexure B. It was unchallenged evidence that the Second Respondent met the requirements for the post.
4.83 It was the evidence that the post was not vacant. The Second Respondent’s witness confirmed this fact when she testified that she received the acting allowance until January 2021. I am therefore satisfied, based on the evidence, that it is clause 2.5 of the Respondent’s Acting Policy that is applicable in this case. The clause applies to non – vacant posts and reads as follows:-
“Urgent / Critical circumstances requiring acting in non- vacant Academic posts
This only applies in circumstances where a substantive post holder’s absence may impact negatively on teaching and learning.
2.5.1 Only the delegated authority has the power to appoint lecturing staff and compensate them for acting in senior or lateral posts that are not vacant. The Chief Financial Officer and College Council must be consulted to confirm funding........”
4.84 The Respondent’s evidence was that it was Covid 19 situation which led to the appointment of the Second Respondent because learning and teaching had to continue whilst Bhogal was on concession leave.
4.85 It was the evidence that learning and teaching was continuing whilst Bhogal was on concession leave. The parties stated that another lecturer was appointed and had taken over the teaching load of Bhogal.
4.86 The Respondent stated that it needed a person who was to perform management function of Bhogal. In her evidence in chief Bhogal said that the contract lecturer Mavuso was teaching her class, she (Bhogal) was performing management function remotely from home and the Respondent could have contacted her if there was something that needed to be done whilst she was on leave. Neither of the two Respondents disputed this piece of the evidence during her cross examination.
4.87 The question that I ask myself is: “what additional duties the Second Respondent was needed to perform if Bhogal was performing the management function and the other contract lecturer was teaching her class?” It was open to both Respondents to present this piece of the evidence at arbitration but they did not. Perhaps they could have produced management reports or presented evidence to the contrary to that which was given by the Second Respondent’s witness, namely, Bhogal.
4.88 Clause 2.5 of the Respondent’s Policy only makes reference to teaching and learning. Nothing is said about management function. I am persuaded therefore that this clause is not applicable in the circumstances of this case.
4.89 Whilst there is no evidence that the Respondent committed an unfair labour practice against the unsuccessful employee (I say this because the Applicant had not applied for the acting position in question) the First Respondent has failed to produce satisfactory evidence to support its version that the appointment of the Second Respondent into the acting position of Senior Lecturer was due to critical / urgent circumstances requiring acting.
4.90 The undisputed evidence that Bhogal was receiving acting allowance until January 2021 tends to support the Applicant’s version. I say this because the Respondent would have terminated Bhogal’s acting appointment if she was no longer performing management functions at the time she was on concession leave but it did not until January 2021. This is persuasive that there was nothing critical or urgent warranting the appointment of the Second Respondent.
4.91 The evidence is overwhelming in this case that the appointment into the acting position was not a transparent and fair process. The Respondent could have adopted a formal approach, send emails to the staff inviting them to apply for the disputed post so to persuade about the credibility of the selection process. It is not mentioned in the Whatsapp message that staff was invited to apply for the vacant post or that the person who submitted his or her name was to receive acting allowance. I ask myself a question:” how was staff expected to know that the message was about filling the acting post for them to apply if this information was not included in the Whatsapp message?”
4.92 Clearly one cannot be slotted into a position that is occupied by another person. The explanation given by the First Respondent for the appointment of the Second Respondent is not satisfactory. In the circumstances it is clear that the selection panel not only acted unlawfully in subverting the process but acted unfairly, capriciously and with bias in appointing a person to act in a position already occupied by another person and whose functions were being performed.
4.93 One can easily be persuaded to conclude that the selection panel acted in a manner which sought to benefit the Second Respondent who indeed benefited whilst the incumbent in the acting post was also receiving the acting allowance until January 2021. The process resulted in the exclusion of other employees who would not have known that there was an acting position to fill and also about the invitation to staff to apply for the post. The conduct was clearly unfair and it is resulted in the Second Respondent receiving the acting allowance which is a benefit.
4.94 Considering all of the above, I conclude that the appointment into the acting position of a Senior Lecturer was flawed in this case and the conduct constituted an unfair labour practice relating to the benefit,
4.95 The Applicant sought the acting appointment process to be started afresh.
4.96 Central to appointments is the principle that the courts and arbitrators alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. See Provincial Administration Western cape (Department of Health and Social Services) v Bikwani and Others (2002) 23 ILJ 761 (LC) at paras 29 -30. .
4.97 In the case of Noonan v safety and Safety and Security Sectoral Bargaining Council and Others (PA 1/11) [2012] ZALAC 9 [2012] BLLR 876 (LAC); (2012) 33 ILJ 2597 (LAC) (1 June 2012) the court considered “fairness of the process” as a whole in circumstances where the successful candidate had failed to disclose information which affected his suitability for the position. Whilst the Applicant had not applied for the post, I have considered the fairness of the process as a whole and I am led to conclude that good cause does not exist to justify non interference with the Respondent’s decision to appoint the Second Respondent and give her the acting allowance.
4.98 In circumstances where it is blatantly clear that the conduct of the Respondent, in its entirety, was unlawful, unfair and capricious, coupled with bias, I feel that the appropriate relief will be an order setting aside the acting appointment of the Second Respondent into the position of A Senior Lecturer which will result in the Second Respondent not receiving the acting allowance “benefit”. Fairness is the overriding factor.
4.99 The Respondent is advised that it can start afresh the appointment process to fill the acting position of a Senior Lecturer, to allow all interested employees an opportunity to compete for the position.
5. AWARD
5.1 The First Respondent, namely, Department of Education KZN committed an unfair labour practice relating to a benefit by appointing the Second Respondent into the post of Senior Lecturer: Springfield Campus and paying her an acting allowance;
5.2 The First Respondent is ordered to set aside the Second Respondent’s acting appointment.
NONHLANHLA DUBAZANE
ELRC ARBITRATOR
ELRC 302 -20 /21 NW
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