ELRC727-20/21 EC
Award Date:
08 September 2021
Text
Case Number: ELRC727-20/21 EC
Panelists: Malusi Mbuli
Date of Award: 08-September 2021
In the ARBITRATION between
SAOU obo PENELOPHE E. JAPHTA
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 24 (5) of the Labour Relations Act No 66 of 1995 (“the Act”) as an Interpretation and Application of a Collective Agreement. It was set down for an arbitration hearing virtually at 09:00 on the 16th of August 2021.
2. The applicant, Mrs. Penelope Japhta attended the hearing remotely and was represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. N. A. Mgidlana an official of the respondent.
3. The matter proceeded on the said date and was finalized same day but the parties requested to file and filed their closing arguments not later than the 20th of August 2021 and both parties filed their arguments.
ISSUE TO BE DECIDED
4. I am required to determine whether the respondent has acted unfairly when interpreting the Agreement for Staff Migration to the New Organizational Structure of the respondent, and if so the appropriate relief.
JURISDICTION TO ARBITRATE
5. Clause 13.6 If an employee, levels 1-2, is dissatisfied with the decision of the Appeals Committee, the employee, may then:
6. Clause 13.6.1 within seven (7) days of receiving the outcome of the Appeals Committee, or 13.6.2 where there has been no response from the Appeals Committee, for a period of more than 30 (thirty day) consecutive days from the date of lodging the appeal, lodge a formal grievance in terms of the rules of the relevant bargaining council provided that the process as outlined above has been exhausted or a period of 30 (thirty) has elapsed from the date of the date of the employee lodging his / her initial appeal and he / she has not been advised of the decision of the Appeals Committee.
7. Clause 13.7 The Director: Employee Relations shall facilitate grievances arising from the Placement Process. Failure by the Director: Employee Relations to resolve the grievance, the employee or Trade Union may submit a dispute to the relevant Bargaining Council for Conciliation and Arbitration (if necessary).
8. This issue has already been dealt with in my ruling that I issued in June on the same matter but felt that I must again clarify it as it always come back through the employer representative.
SURVEY OF EVIDENCE
9. Common cause facts:
- The parties have a Staff Migration Agreement into New Organizational Structure that regulates migration and placement of staff into the new structure.
- The dispute between the parties is not about appointment or promotion but the implementation of the said Staff Migration Agreement into New Organizational Structure.
- The applicant and the placed candidate met the minimum requirements of the position in question but differed in respect of qualification and experience.
- The placed candidate possessed more qualifications than the applicant and the applicant had more experience than the placed candidate.
- The respondent used the educational qualifications to distinguish the two candidates, and this placed the placed candidate at an advantage and was placed.
Issue in dispute:
- Whether the criteria used in placing the placed candidate and not placing the applicant was fair or not.
- Whether the respondent has interpreted and applied the Staff Migration Agreement into New Organizational Structure correctly and fairly.
10. Submissions by the applicant:
11. The applicant’s representative called the applicant Mrs. Penelope Elizabeth Japhta who stated that she works for the respondent as DCS – Policy Compliance and her position was DCES – Geography before she was placed a position she held since 2013.
12. The applicant confirmed on record the common cause facts as stated above and stated that she has about 8 years’ experience in the position as outlined in the requirements and that the placed incumbent has three years’ experience related to the job.
13. She averred that when they were given a chance to choose the positions by order of preference her first choice was the position in question and that he qualified for the position she put as a first choice because she has experience and qualifications in Geography and History.
14. She confirmed that she was not placed in the said position and the other candidate she was competing with was place in the said position. He was placed in the second choice position and does not know the procedure and criteria that was followed by the respondent in placing them.
15. She then filed an appeal because believed that the Agreement for Staff Migration to the New Organizational Structure was not properly followed. She averred that the concerns that she wanted addressed by the Appeals committee were not addressed and was later told that educational qualifications were used as a criterion.
16. She confirmed that educational qualification is just one of the criteria used and whilst she agreed that the placement of the employees according to the Agreement for Staff Migration to the New Organizational Structure is the prerogative of the employer, she stated that the agreement and its criteria must be applied fairly.
17. Submissions by the respondent:
18. The respondent’s representative called their first witness Mr. Mzoxolo Zazela who testified that he works for the respondent and was part of placement through the Agreement for Staff Migration to the New Organizational Structure.
19. He stated that he knows the case related to Mrs. Penelope Japhtas case and it arose as a result of the Department of Education reviewing its structure and placement of the employees according to the Agreement on Staff Migration to the New Organizational Structure.
20. He confirmed that Mrs. Penelope Japhta completed the choice form and reflected 3 choices and also indicated where she would like to be placed. He averred that the recommending panel recommended that he be placed at her choice number 2 and not choice number.
21. He stated that the placed candidate Mandlakazi made the same choice as the applicant and Mandlakazi has NQF8 and NQF6 and this means that Mandlakazi had better qualifications than Penelope Japhta and that both candidates were doing the job and the educational qualifications were used as a breakthrough.
22. He confirmed that there were 4 criteria that were considered, and the educational qualification was used as a breakthrough and the qualification carry more weight than experience. He further confirmed that there was a tie between the two candidates.
23. The respondent’s respondent then called their 2nd witness Mrs. Nadine Pote who testified that she works for the respondent as a Chief Director – Curriculum Management and was part of the migration recommending committee.
24. She averred that she was told at the meeting that there were two names for the positions and that the candidates have chosen similar or same choices. She stated that both of them chose Geography as their first choice and the educational qualification was used as a deal breaker. She confirmed that Mandlakazi had better qualifications than Penelope and was therefore a preferred candidate for placement into the said position.
25. She confirmed that there was a tie between the two candidates and that in terms of the Agreement on Staff Migration to the New Organizational Structure when there is a tie then the interview process has to be conducted. She further confirmed that whilst the tie was identified there were no interviews that were arranged.
26. The respondent’s representative then called their 3rd witness Mr. Mbuyiseli Sandi who testified that he works for the respondent and was also part of the recommending panel and at the time he was representing the union SADTU in the panel.
27. He stated that his role at the hearing was to ensure fairness in the placement of candidates and that he was familiar with the dispute that was declared by the applicant. He stated that the placement process was an open and a fair process.
28. He averred that the choices of candidates were entertained, process was fair and in accordance with the Agreement on Staff Migration into the New Organizational Structure. He confirmed that there was a tie between the two candidates to be placed and that this tied was resolved democratically and he confirmed that the union SAOU was not part of the panel.
29. He stated that Nadine was asked to make a presentation that could break the tie and that the educational qualifications were identified and used to break the tie and the issue was resolved.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
30. Generally, the employees do not have the right to employment or promotion but the protection under section 186 (2) (a) relates to unfairness that happens when the employer seek to promote or employ an employee, the words promotion and employment are used synonymous for the purposes of this section.
31. The point is that the applicant and whoever is in this category does not have a right to the position or level that she wants but have an interest on how the Agreement for Staff Migration to the New Organizational Structure has been applied. This is so because the application of this agreement may affect the applicant.
32. The dispute in this matter is therefore arising out of the application of the Agreement for Staff Migration to the New Organizational Structure.
33. In this migration process the parties have agreed on the grievance or dispute resolution path that must be followed in the event that there is a grievance or dispute arising out of the application of this agreement.
34. Clause 13 deals with this part and provides as follows:
35. Clause 13.6 If an employee, levels 1-2, is dissatisfied with the decision of the Appeals Committee, the employee, may then:
36. Clause 13.6.1 within seven (7) days of receiving the outcome of the Appeals Committee, or 13.6.2 where there has been no response from the Appeals Committee, for a period of more than 30 (thirty day) consecutive days from the date of lodging the appeal, lodge a formal grievance in terms of the rules of the relevant bargaining council provided that the process as outlined above has been exhausted or a period of 30 (thirty) has elapsed from the date of the date of the employee lodging his / her initial appeal and he / she has not been advised of the decision of the Appeals Committee.
37. Clause 13.7 The Director: Employee Relations shall facilitate grievances arising from the Placement Process. Failure by the Director: Employee Relations to resolve the grievance, the employee or Trade Union may submit a dispute to the relevant Bargaining Council for Conciliation and Arbitration (if necessary).
38. From this agreement particularly clause 13.7 it is clear that the ELRC (relevant council) has jurisdiction to conciliate and arbitrate any dispute arising out of the application of this agreement.
39. As indicated above the relevant facts here in this dispute are common as outlined above and it is clear that both candidates met the requirements to be placed in this position and that the distinction can only be drawn in respect of educational qualifications and experience.
40. The placed candidate Mandlakazi has an urge over the applicant in respect of qualification because she possesses more and better qualifications than the applicant and the applicant on the other side has an urge over the placed candidate because she possesses more experience than the placed candidate.
- This is what is referred to as a “tie” – this is not disputed by the respondent and the respondent’s witnesses and the real dispute here is whether the employer has managed this tie fairly and in accordance with the Agreement on Staff Migration to the New Organizational Structure.
- This then talks to the criteria that was used in order to break the said tie and this is exactly what the applicant is disputing or asking to be explained.
41. It is also common cause or common from the evidence of the witnesses that this tie was resolved by educational qualifications in favor of the placed candidate even though it was not clear to the applicant what criteria was used by the employer when that information was requested before the hearing.
42. In terms of the weight that the attributes have it is clear from the evidence of the employer main witness Mr. Mzoxolo Zazela that both educational qualifications and experience count 30 % and this is the reason why the parties at least agree that there was a tie.
43. The 2nd employer witness Mrs. Nadine Pote gave undisputed evidence that the Agreement on Staff Migration to the New Organizational Structure deals with this issue and states that when there is a tie, then the interviews must be conducted and other skills considered.
44. This is opposed to what the respondent has just done by choosing and favoring a candidate over another without a valid reason and this act was unfair to the applicant even though the result that the employer came up with may have been correct.
45. Whenever there is authority that regulates a particular subject e.g. the Agreement, legislation, policy etc., it must be adhered to in order the alleviate the perceptions of bias and other negative connotations that the affected parties may have.
46. This practice was not observed here and this is the reason why the applicant non – placement is unfair on procedural grounds even though the employer’s decision may be fair. The applicant cannot be protectively placed on the said position based on procedural grounds and in fact the applicant is not asking for such placement as a remedy but compensation.
47. I also do not think that compensation will be appropriate in the circumstances.
48. In the circumstances I make the following award.
AWARD
49. The respondent has acted unfairly and has not complied with the relevant provisions of Agreement on Staff Migration to the New Organizational Structure when placing they placed the placed candidate and failing to place the applicant.
50. The respondent is ordered to restart the placement process in relation to this matter and observe and apply the Agreement on Staff Migration to the New Organizational Structure correctly.
51. That process must be restarted and finalized not later than the 31st of October 2021.
Signature:
Commissioner: Malusi Mbuli
Panelists: Malusi Mbuli
Date of Award: 08-September 2021
In the ARBITRATION between
SAOU obo PENELOPHE E. JAPHTA
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(Respondent)
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 24 (5) of the Labour Relations Act No 66 of 1995 (“the Act”) as an Interpretation and Application of a Collective Agreement. It was set down for an arbitration hearing virtually at 09:00 on the 16th of August 2021.
2. The applicant, Mrs. Penelope Japhta attended the hearing remotely and was represented by Mrs. Venita Van Wyk and official of the applicant’s trade union SAOU. The respondent, Department of Education – Eastern Cape, also attended the hearing and was represented by Mr. N. A. Mgidlana an official of the respondent.
3. The matter proceeded on the said date and was finalized same day but the parties requested to file and filed their closing arguments not later than the 20th of August 2021 and both parties filed their arguments.
ISSUE TO BE DECIDED
4. I am required to determine whether the respondent has acted unfairly when interpreting the Agreement for Staff Migration to the New Organizational Structure of the respondent, and if so the appropriate relief.
JURISDICTION TO ARBITRATE
5. Clause 13.6 If an employee, levels 1-2, is dissatisfied with the decision of the Appeals Committee, the employee, may then:
6. Clause 13.6.1 within seven (7) days of receiving the outcome of the Appeals Committee, or 13.6.2 where there has been no response from the Appeals Committee, for a period of more than 30 (thirty day) consecutive days from the date of lodging the appeal, lodge a formal grievance in terms of the rules of the relevant bargaining council provided that the process as outlined above has been exhausted or a period of 30 (thirty) has elapsed from the date of the date of the employee lodging his / her initial appeal and he / she has not been advised of the decision of the Appeals Committee.
7. Clause 13.7 The Director: Employee Relations shall facilitate grievances arising from the Placement Process. Failure by the Director: Employee Relations to resolve the grievance, the employee or Trade Union may submit a dispute to the relevant Bargaining Council for Conciliation and Arbitration (if necessary).
8. This issue has already been dealt with in my ruling that I issued in June on the same matter but felt that I must again clarify it as it always come back through the employer representative.
SURVEY OF EVIDENCE
9. Common cause facts:
- The parties have a Staff Migration Agreement into New Organizational Structure that regulates migration and placement of staff into the new structure.
- The dispute between the parties is not about appointment or promotion but the implementation of the said Staff Migration Agreement into New Organizational Structure.
- The applicant and the placed candidate met the minimum requirements of the position in question but differed in respect of qualification and experience.
- The placed candidate possessed more qualifications than the applicant and the applicant had more experience than the placed candidate.
- The respondent used the educational qualifications to distinguish the two candidates, and this placed the placed candidate at an advantage and was placed.
Issue in dispute:
- Whether the criteria used in placing the placed candidate and not placing the applicant was fair or not.
- Whether the respondent has interpreted and applied the Staff Migration Agreement into New Organizational Structure correctly and fairly.
10. Submissions by the applicant:
11. The applicant’s representative called the applicant Mrs. Penelope Elizabeth Japhta who stated that she works for the respondent as DCS – Policy Compliance and her position was DCES – Geography before she was placed a position she held since 2013.
12. The applicant confirmed on record the common cause facts as stated above and stated that she has about 8 years’ experience in the position as outlined in the requirements and that the placed incumbent has three years’ experience related to the job.
13. She averred that when they were given a chance to choose the positions by order of preference her first choice was the position in question and that he qualified for the position she put as a first choice because she has experience and qualifications in Geography and History.
14. She confirmed that she was not placed in the said position and the other candidate she was competing with was place in the said position. He was placed in the second choice position and does not know the procedure and criteria that was followed by the respondent in placing them.
15. She then filed an appeal because believed that the Agreement for Staff Migration to the New Organizational Structure was not properly followed. She averred that the concerns that she wanted addressed by the Appeals committee were not addressed and was later told that educational qualifications were used as a criterion.
16. She confirmed that educational qualification is just one of the criteria used and whilst she agreed that the placement of the employees according to the Agreement for Staff Migration to the New Organizational Structure is the prerogative of the employer, she stated that the agreement and its criteria must be applied fairly.
17. Submissions by the respondent:
18. The respondent’s representative called their first witness Mr. Mzoxolo Zazela who testified that he works for the respondent and was part of placement through the Agreement for Staff Migration to the New Organizational Structure.
19. He stated that he knows the case related to Mrs. Penelope Japhtas case and it arose as a result of the Department of Education reviewing its structure and placement of the employees according to the Agreement on Staff Migration to the New Organizational Structure.
20. He confirmed that Mrs. Penelope Japhta completed the choice form and reflected 3 choices and also indicated where she would like to be placed. He averred that the recommending panel recommended that he be placed at her choice number 2 and not choice number.
21. He stated that the placed candidate Mandlakazi made the same choice as the applicant and Mandlakazi has NQF8 and NQF6 and this means that Mandlakazi had better qualifications than Penelope Japhta and that both candidates were doing the job and the educational qualifications were used as a breakthrough.
22. He confirmed that there were 4 criteria that were considered, and the educational qualification was used as a breakthrough and the qualification carry more weight than experience. He further confirmed that there was a tie between the two candidates.
23. The respondent’s respondent then called their 2nd witness Mrs. Nadine Pote who testified that she works for the respondent as a Chief Director – Curriculum Management and was part of the migration recommending committee.
24. She averred that she was told at the meeting that there were two names for the positions and that the candidates have chosen similar or same choices. She stated that both of them chose Geography as their first choice and the educational qualification was used as a deal breaker. She confirmed that Mandlakazi had better qualifications than Penelope and was therefore a preferred candidate for placement into the said position.
25. She confirmed that there was a tie between the two candidates and that in terms of the Agreement on Staff Migration to the New Organizational Structure when there is a tie then the interview process has to be conducted. She further confirmed that whilst the tie was identified there were no interviews that were arranged.
26. The respondent’s representative then called their 3rd witness Mr. Mbuyiseli Sandi who testified that he works for the respondent and was also part of the recommending panel and at the time he was representing the union SADTU in the panel.
27. He stated that his role at the hearing was to ensure fairness in the placement of candidates and that he was familiar with the dispute that was declared by the applicant. He stated that the placement process was an open and a fair process.
28. He averred that the choices of candidates were entertained, process was fair and in accordance with the Agreement on Staff Migration into the New Organizational Structure. He confirmed that there was a tie between the two candidates to be placed and that this tied was resolved democratically and he confirmed that the union SAOU was not part of the panel.
29. He stated that Nadine was asked to make a presentation that could break the tie and that the educational qualifications were identified and used to break the tie and the issue was resolved.
ANALYSIS OF SUBMISSIONS AND ARGUMENT
30. Generally, the employees do not have the right to employment or promotion but the protection under section 186 (2) (a) relates to unfairness that happens when the employer seek to promote or employ an employee, the words promotion and employment are used synonymous for the purposes of this section.
31. The point is that the applicant and whoever is in this category does not have a right to the position or level that she wants but have an interest on how the Agreement for Staff Migration to the New Organizational Structure has been applied. This is so because the application of this agreement may affect the applicant.
32. The dispute in this matter is therefore arising out of the application of the Agreement for Staff Migration to the New Organizational Structure.
33. In this migration process the parties have agreed on the grievance or dispute resolution path that must be followed in the event that there is a grievance or dispute arising out of the application of this agreement.
34. Clause 13 deals with this part and provides as follows:
35. Clause 13.6 If an employee, levels 1-2, is dissatisfied with the decision of the Appeals Committee, the employee, may then:
36. Clause 13.6.1 within seven (7) days of receiving the outcome of the Appeals Committee, or 13.6.2 where there has been no response from the Appeals Committee, for a period of more than 30 (thirty day) consecutive days from the date of lodging the appeal, lodge a formal grievance in terms of the rules of the relevant bargaining council provided that the process as outlined above has been exhausted or a period of 30 (thirty) has elapsed from the date of the date of the employee lodging his / her initial appeal and he / she has not been advised of the decision of the Appeals Committee.
37. Clause 13.7 The Director: Employee Relations shall facilitate grievances arising from the Placement Process. Failure by the Director: Employee Relations to resolve the grievance, the employee or Trade Union may submit a dispute to the relevant Bargaining Council for Conciliation and Arbitration (if necessary).
38. From this agreement particularly clause 13.7 it is clear that the ELRC (relevant council) has jurisdiction to conciliate and arbitrate any dispute arising out of the application of this agreement.
39. As indicated above the relevant facts here in this dispute are common as outlined above and it is clear that both candidates met the requirements to be placed in this position and that the distinction can only be drawn in respect of educational qualifications and experience.
40. The placed candidate Mandlakazi has an urge over the applicant in respect of qualification because she possesses more and better qualifications than the applicant and the applicant on the other side has an urge over the placed candidate because she possesses more experience than the placed candidate.
- This is what is referred to as a “tie” – this is not disputed by the respondent and the respondent’s witnesses and the real dispute here is whether the employer has managed this tie fairly and in accordance with the Agreement on Staff Migration to the New Organizational Structure.
- This then talks to the criteria that was used in order to break the said tie and this is exactly what the applicant is disputing or asking to be explained.
41. It is also common cause or common from the evidence of the witnesses that this tie was resolved by educational qualifications in favor of the placed candidate even though it was not clear to the applicant what criteria was used by the employer when that information was requested before the hearing.
42. In terms of the weight that the attributes have it is clear from the evidence of the employer main witness Mr. Mzoxolo Zazela that both educational qualifications and experience count 30 % and this is the reason why the parties at least agree that there was a tie.
43. The 2nd employer witness Mrs. Nadine Pote gave undisputed evidence that the Agreement on Staff Migration to the New Organizational Structure deals with this issue and states that when there is a tie, then the interviews must be conducted and other skills considered.
44. This is opposed to what the respondent has just done by choosing and favoring a candidate over another without a valid reason and this act was unfair to the applicant even though the result that the employer came up with may have been correct.
45. Whenever there is authority that regulates a particular subject e.g. the Agreement, legislation, policy etc., it must be adhered to in order the alleviate the perceptions of bias and other negative connotations that the affected parties may have.
46. This practice was not observed here and this is the reason why the applicant non – placement is unfair on procedural grounds even though the employer’s decision may be fair. The applicant cannot be protectively placed on the said position based on procedural grounds and in fact the applicant is not asking for such placement as a remedy but compensation.
47. I also do not think that compensation will be appropriate in the circumstances.
48. In the circumstances I make the following award.
AWARD
49. The respondent has acted unfairly and has not complied with the relevant provisions of Agreement on Staff Migration to the New Organizational Structure when placing they placed the placed candidate and failing to place the applicant.
50. The respondent is ordered to restart the placement process in relation to this matter and observe and apply the Agreement on Staff Migration to the New Organizational Structure correctly.
51. That process must be restarted and finalized not later than the 31st of October 2021.
Signature:
Commissioner: Malusi Mbuli
ELRC 302 -20 /21 NW
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