ELRC644-20/21 EC
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ELRC 158-21/22 GP
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Award Date:
29 September 2021
Case Number: ELRC 158-21/22 GP
Commissioner: M.A. HAWYES
Date of Award: 29th September 2021
In the ARBITRATION between
P. Dipee
(Union/Applicant)
And
1.Gauteng Department of Education
(First Respondent)
2. M. Mahandana
(Second Respondent)
Union/Applicant’s representative: Mr. T.E Ramabulana (SADTU)
Union/Applicant’s address:
Telephone: 079 541 4127
Telefax:
E-mail:
Respondents’ representatives: Mr. G. Mbonde (1st Respondent), Mr M. Marco (PEU) (2nd Respondent)
Respondent’s address:
Telephone: 072 394 0440; 072 127 3507
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and sat on the 15th and 16th September 2021. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 23rd September 2021. The closing arguments were timeously received and my award now follows. Mr. T.E Ramabulana, a union official from the South African Democratic Teachers Union (SADTU) represented the Applicant, Ms P Dipee. Mr. G. Mbonde, a labour relations official, represented the First Respondent, Gauteng Department of Education. Mr. M. Marco, from the Professional Educators Union (PEU), represented the Second Respondent, Ms M Mahandana. The Second Respondent is the current incumbent in the disputed post.
ISSUE IN DISPUTE
2. Whether the First Respondent committed an unfair labour practice in appointing the Second Respondent to the HOD promotional post at Baleseng Junior Secondary School (Baleseng).
BACKGROUND TO THE ISSUE IN DISPUTE
3. The First Respondent employed the Applicant as a post one level educator at Baleseng.
4. The parties made use of one consolidated bundle at the arbitration hearing.
5. The proceedings were digitally recorded and detailed long hand notes were also kept.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
6. The Applicant testified under oath and her testimony was followed by Mr, J. Malema (a member of the school management team (SMT), Mr. Z. B Tembe, the secretary of the shortlisting and interview committee for the disputed post and a member of the school governing body (SGB), Mr N.E Ndanganeni, a temporary educator responsible for teaching Venda at Baleseng and Mr. W. Malope, the SADTU union observer for the shortlisting process in the disputed post.
7. The gist of the complaints raised in the testimony of the various witnesses was that the selection and recruitment process for filling the post was procedurally flawed, substantively unfair and discriminatory.
8. It is common cause that the eventual qualifying criteria for the HOD post was Tshivenda (Venda) home language and Economic and Management Sciences (EMS). It was contended that the way the post was advertised discriminated against teaching staff from the other three African home languages. It was alleged that the current incumbent (being a Venda speaker) is in charge of the whole department of African languages and not only Tshivenda and other home language educators were precluded from applying for the post. The Applicant was eventually shortlisted for the post on the basis that she met the minimum requirements of teaching EMS.
9. It was also submitted that the SMT’s decision on the curriculum needs of the school was overruled by the principal of the school and unnamed district officials. The principal announced to the school that the initial SMT requirement of African Home Languages in general as a requirement for the post, would be changed to Tshivenda specifically and the shortlisting process continued on that basis.
10. It was also submitted that the shortlisting process was procedurally unfair in that, during the process, the principal contacted the circuit manager at the district to ask advice. It was submitted that the recruitment and selection for promotional posts is a closed process which should not be influenced by parties outside the process. All members of the panel signed a confidentiality form which prevents them from communicating with anyone outside the process. It was submitted that the gross disregard of the rules by the principal and circuit manager should not be left unchallenged as it could create a precedent for further processes.
11. The initial post criterion of Venda was changed to accommodate other African home languages by the introduction of EMS as a minimum requirement. It was on this basis that the Applicant qualified as one of the five educators to be shortlisted. It was argued that the changing of the post requirements also constituted a procedural shortcoming.
12. In dealing with substantive unfairness of the current incumbent’s appointment it was argued that the Applicant met the minimum requirements for the post and on that basis she was shortlisted and nominated as the number two candidate for the post by the SGB. It is common cause that the current incumbent was nominated as the third candidate by the SGB. For the sake of clarity the number one nominated candidate was offered a position at another school and thus was not considered for appointment in this post.
13. It was argued on behalf of the Applicant that she had acted in the HOD post for two years. It is also argued that if the Applicant was appointed into the post, Ndanganeni would in all probability be appointed permanently into his Venda teaching post and thus would not lose his job.
14. It is also common cause that both the Applicant and the current incumbent did not have any teaching experience in Venda. It was argued that a person who does not have experience in teaching a subject/learning area cannot be entrusted with leading or managing people who have taught these learning areas for many years.
15. It was argued that should the Commissioner not rule in the Applicant’s favour the post should at best be re-advertised in a fair and non-discriminatory manner.
SURVEY OF THE REPONDENTS’ EVIDENCE AND ARGUMENT
16. The Respondent led the evidence of the Acting District Director, Ms Y. Mooke, Ms S. Nethavhakone, the former SGB Chairperson and the chair of the panel that appointed the current incumbent and Ms. G.M Khoza, the principal at Baleseng.
17. Mooke, testified, inter alia, that the area of Soshanguve only has three schools offering Venda as a subject namely Mathaga Primary, Baleseng and Hlomphanang Secondary. She testified that there are very few educators with qualifications in Venda. The Department had a duty to appoint candidates with appropriate qualifications in all the African languages which was in the best interest of the learners and the community. The other African home languages were well catered for at schools in general and Baleseng in particular.
18. Nethavhakone testified, inter alia, that the District Director had informed the SGB of their decision to appoint the Second Respondent. The SGB did not oppose the District Director’s decision since it was within her prerogative to appoint any one of the SGB’s three nominated candidates.
19. Nethavhakone testified further that as a Venda person she was part of the parents and community that wanted their children to learn the Venda language and be taught by qualified learners.
20. Ms. Khoza confirmed her position as an ex officio member of the SGB and corroborated the testimony of the other Respondent witnesses. She specifically testified that the SGB accepted the District Director’s advice to advertise the post as Venda because the school had a serious need for a Venda teacher as it did not have a permanent Venda educator.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The onus rests on the Applicant to prove an unfair labour practice against the two Respondents’ on a balance of probabilities.
22. At the outset, when the Applicant raised various aspects of discrimination, I advised the Applicant’s representative that the Council did not have jurisdiction to deal with a discrimination dispute and my focus at all times would be on whether an unfair labour practice was committed or not. In any event SADTU raised a grievance as to how the shortlisting process was conducted and the grievance was dealt with by the First Respondent and found to have no merit. I regard that as the end of the matter on discrimination.
23. I find that the motivation for the First Respondent’s focus on the appointment of a Venda speaking HOD at Baleseng is well founded given the practicalities of the situation. Although the Venda language is a minority language compared to the other African home languages it is spoken by many pupils of Baleseng and the Soshanguve community. The First Respondent was well within their rights to address a perceived shortcoming of a permanent Venda educator as part of their appointment of an HOD at the school. The concerns of Ndanganeni as the temporary Venda educator at Baleseng are, with respect, not something that I need to address in this award.
24. It is common cause that the interests of other African home language learners are adequately addressed in the post establishment of Baleseng. It is apparent that the SGB and SMT accepted that the main requirement of the HOD post at Baleseng would be knowledge of and/or experience in Venda except for a faction with the SMT and the union SADTU that felt that the rights of other Home Language educators were being prejudiced. It became necessary (due to the shortage of suitably qualified Venda candidates) to include other requirements which would enable five candidates including the Applicant to be shortlisted. This was obviously also an attempt to placate the concerns of the faction referred to above.
25. The Applicant has no qualifications or experience in teaching Venda and should rightly be excluded from consideration for appointment into a position which requires the ability to read, write and speak of Venda as a prerequisite. Although the current incumbent has no experience in teaching Venda she can read, write and speak Venda. She also has impressive academic qualifications in the study of Venda plus a management qualification which the Applicant does not have. Although the Applicant acted in the HOD position for two years she rightly conceded during cross examination that acting in a position does not entitle her to a permanent appointment into that position.
26. I find that the procedural concerns raised on behalf of the Applicant were bona fide and necessary efforts on the part of the officials concerned to keep the recruitment process focused on the post requirements and on track.
27. In conclusion I make the following award.
AWARD
28. The First Respondent, Gauteng Department of Education did not commit an unfair labour practice relating to promotion as it relates to the Applicant, Ms Ms P Dipee when they appointed the Second Respondent, Ms M Mahandana to the HOD post at Baleseng Junior Secondary School (Baleseng).
Commissioner: M.A. HAWYES
Date of Award: 29th September 2021
In the ARBITRATION between
P. Dipee
(Union/Applicant)
And
1.Gauteng Department of Education
(First Respondent)
2. M. Mahandana
(Second Respondent)
Union/Applicant’s representative: Mr. T.E Ramabulana (SADTU)
Union/Applicant’s address:
Telephone: 079 541 4127
Telefax:
E-mail:
Respondents’ representatives: Mr. G. Mbonde (1st Respondent), Mr M. Marco (PEU) (2nd Respondent)
Respondent’s address:
Telephone: 072 394 0440; 072 127 3507
Telefax:
E-mail:
DETAILS OF HEARING AND REPRESENTATION
1. The case was scheduled for arbitration and sat on the 15th and 16th September 2021. After completion of the arbitration the parties requested the opportunity to submit written closing arguments by the 23rd September 2021. The closing arguments were timeously received and my award now follows. Mr. T.E Ramabulana, a union official from the South African Democratic Teachers Union (SADTU) represented the Applicant, Ms P Dipee. Mr. G. Mbonde, a labour relations official, represented the First Respondent, Gauteng Department of Education. Mr. M. Marco, from the Professional Educators Union (PEU), represented the Second Respondent, Ms M Mahandana. The Second Respondent is the current incumbent in the disputed post.
ISSUE IN DISPUTE
2. Whether the First Respondent committed an unfair labour practice in appointing the Second Respondent to the HOD promotional post at Baleseng Junior Secondary School (Baleseng).
BACKGROUND TO THE ISSUE IN DISPUTE
3. The First Respondent employed the Applicant as a post one level educator at Baleseng.
4. The parties made use of one consolidated bundle at the arbitration hearing.
5. The proceedings were digitally recorded and detailed long hand notes were also kept.
SURVEY OF THE APPLICANT’S EVIDENCE AND ARGUMENT
6. The Applicant testified under oath and her testimony was followed by Mr, J. Malema (a member of the school management team (SMT), Mr. Z. B Tembe, the secretary of the shortlisting and interview committee for the disputed post and a member of the school governing body (SGB), Mr N.E Ndanganeni, a temporary educator responsible for teaching Venda at Baleseng and Mr. W. Malope, the SADTU union observer for the shortlisting process in the disputed post.
7. The gist of the complaints raised in the testimony of the various witnesses was that the selection and recruitment process for filling the post was procedurally flawed, substantively unfair and discriminatory.
8. It is common cause that the eventual qualifying criteria for the HOD post was Tshivenda (Venda) home language and Economic and Management Sciences (EMS). It was contended that the way the post was advertised discriminated against teaching staff from the other three African home languages. It was alleged that the current incumbent (being a Venda speaker) is in charge of the whole department of African languages and not only Tshivenda and other home language educators were precluded from applying for the post. The Applicant was eventually shortlisted for the post on the basis that she met the minimum requirements of teaching EMS.
9. It was also submitted that the SMT’s decision on the curriculum needs of the school was overruled by the principal of the school and unnamed district officials. The principal announced to the school that the initial SMT requirement of African Home Languages in general as a requirement for the post, would be changed to Tshivenda specifically and the shortlisting process continued on that basis.
10. It was also submitted that the shortlisting process was procedurally unfair in that, during the process, the principal contacted the circuit manager at the district to ask advice. It was submitted that the recruitment and selection for promotional posts is a closed process which should not be influenced by parties outside the process. All members of the panel signed a confidentiality form which prevents them from communicating with anyone outside the process. It was submitted that the gross disregard of the rules by the principal and circuit manager should not be left unchallenged as it could create a precedent for further processes.
11. The initial post criterion of Venda was changed to accommodate other African home languages by the introduction of EMS as a minimum requirement. It was on this basis that the Applicant qualified as one of the five educators to be shortlisted. It was argued that the changing of the post requirements also constituted a procedural shortcoming.
12. In dealing with substantive unfairness of the current incumbent’s appointment it was argued that the Applicant met the minimum requirements for the post and on that basis she was shortlisted and nominated as the number two candidate for the post by the SGB. It is common cause that the current incumbent was nominated as the third candidate by the SGB. For the sake of clarity the number one nominated candidate was offered a position at another school and thus was not considered for appointment in this post.
13. It was argued on behalf of the Applicant that she had acted in the HOD post for two years. It is also argued that if the Applicant was appointed into the post, Ndanganeni would in all probability be appointed permanently into his Venda teaching post and thus would not lose his job.
14. It is also common cause that both the Applicant and the current incumbent did not have any teaching experience in Venda. It was argued that a person who does not have experience in teaching a subject/learning area cannot be entrusted with leading or managing people who have taught these learning areas for many years.
15. It was argued that should the Commissioner not rule in the Applicant’s favour the post should at best be re-advertised in a fair and non-discriminatory manner.
SURVEY OF THE REPONDENTS’ EVIDENCE AND ARGUMENT
16. The Respondent led the evidence of the Acting District Director, Ms Y. Mooke, Ms S. Nethavhakone, the former SGB Chairperson and the chair of the panel that appointed the current incumbent and Ms. G.M Khoza, the principal at Baleseng.
17. Mooke, testified, inter alia, that the area of Soshanguve only has three schools offering Venda as a subject namely Mathaga Primary, Baleseng and Hlomphanang Secondary. She testified that there are very few educators with qualifications in Venda. The Department had a duty to appoint candidates with appropriate qualifications in all the African languages which was in the best interest of the learners and the community. The other African home languages were well catered for at schools in general and Baleseng in particular.
18. Nethavhakone testified, inter alia, that the District Director had informed the SGB of their decision to appoint the Second Respondent. The SGB did not oppose the District Director’s decision since it was within her prerogative to appoint any one of the SGB’s three nominated candidates.
19. Nethavhakone testified further that as a Venda person she was part of the parents and community that wanted their children to learn the Venda language and be taught by qualified learners.
20. Ms. Khoza confirmed her position as an ex officio member of the SGB and corroborated the testimony of the other Respondent witnesses. She specifically testified that the SGB accepted the District Director’s advice to advertise the post as Venda because the school had a serious need for a Venda teacher as it did not have a permanent Venda educator.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The onus rests on the Applicant to prove an unfair labour practice against the two Respondents’ on a balance of probabilities.
22. At the outset, when the Applicant raised various aspects of discrimination, I advised the Applicant’s representative that the Council did not have jurisdiction to deal with a discrimination dispute and my focus at all times would be on whether an unfair labour practice was committed or not. In any event SADTU raised a grievance as to how the shortlisting process was conducted and the grievance was dealt with by the First Respondent and found to have no merit. I regard that as the end of the matter on discrimination.
23. I find that the motivation for the First Respondent’s focus on the appointment of a Venda speaking HOD at Baleseng is well founded given the practicalities of the situation. Although the Venda language is a minority language compared to the other African home languages it is spoken by many pupils of Baleseng and the Soshanguve community. The First Respondent was well within their rights to address a perceived shortcoming of a permanent Venda educator as part of their appointment of an HOD at the school. The concerns of Ndanganeni as the temporary Venda educator at Baleseng are, with respect, not something that I need to address in this award.
24. It is common cause that the interests of other African home language learners are adequately addressed in the post establishment of Baleseng. It is apparent that the SGB and SMT accepted that the main requirement of the HOD post at Baleseng would be knowledge of and/or experience in Venda except for a faction with the SMT and the union SADTU that felt that the rights of other Home Language educators were being prejudiced. It became necessary (due to the shortage of suitably qualified Venda candidates) to include other requirements which would enable five candidates including the Applicant to be shortlisted. This was obviously also an attempt to placate the concerns of the faction referred to above.
25. The Applicant has no qualifications or experience in teaching Venda and should rightly be excluded from consideration for appointment into a position which requires the ability to read, write and speak of Venda as a prerequisite. Although the current incumbent has no experience in teaching Venda she can read, write and speak Venda. She also has impressive academic qualifications in the study of Venda plus a management qualification which the Applicant does not have. Although the Applicant acted in the HOD position for two years she rightly conceded during cross examination that acting in a position does not entitle her to a permanent appointment into that position.
26. I find that the procedural concerns raised on behalf of the Applicant were bona fide and necessary efforts on the part of the officials concerned to keep the recruitment process focused on the post requirements and on track.
27. In conclusion I make the following award.
AWARD
28. The First Respondent, Gauteng Department of Education did not commit an unfair labour practice relating to promotion as it relates to the Applicant, Ms Ms P Dipee when they appointed the Second Respondent, Ms M Mahandana to the HOD post at Baleseng Junior Secondary School (Baleseng).