ELRC644-20/21 EC
Text
ELRC198-21/22WC
Award Date:
29 November 2021
Commissioner: Gail McEwan
Case No.: ELRC 198-21/22 WC
Date of Award: 29 November 2021
In the ARBITRATION between:
NUFBWSAW obo IRVINE JEFTHA
(Employee)
And
THE DEPARTMENT OF EDUCATION WESTERN CAPE / REVEREND BETTY WANZA AND
PATRICK MINNAAR
(Employer) (Interested Parties)
Union/Employee’s representative: Petrus Mars
Employer’s representative: Bernadine Noble
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 16 November 2021 virtually with the consent of the parties. Present was Irvine Jeftha (employee) who was represented by Petrus Mars (NUFBWSAW). The Department of Education (DOE) (employer) was represented by Bernadine Noble (labour relations officer). Reverend Betty Wanza and Patrick Minnaar were joined as interested parties in a ruling I made on 3 August 2021. These proceedings were digitally recorded; both parties handed in bundles of documents and Daniel Kova was present as an Afrikaans interpreter. A further interpreter Jan Oberholzer was present to interpret (sign language) for Wanza as she is deaf. The dispute had originally been referred to the CCMA and then correctly transferred to the ELRC. Condonation was granted in a ruling dated 28 June 2021 for the late referral of this dispute.
THE ISSUE IN DISPUTE
(2) The dispute is an alleged unfair labour practice in that Jeftha applied for the position of a live-in hostel superintendent and had not been appointed. The advertisement to which Jeftha had responded contained a total of three vacancies all for the same position but at different hostels. Jeftha held that he would have preferred to have been placed at the Izaak February hostel as the superintendent. Jeftha had no problems with the appointment of Rodney Cornellison into that hostel. Jeftha put into dispute the appointment at the other two hostels superintendents. Jeftha held that Betty Wanza did not hold the requisite qualifications in that she was not an educator; did not have a grade 12 certificate nor had a drivers’ license. Patrick Minnaar according to Jeftha had no experience and had never been on the short list. It was the appointment of the two abovenamed which Jeftha felt to be unfair as he believed he should have been appointed.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Jeftha started working for the employer on 1 August 1999; worked as a level 1 educator; earned R35 000.00 per month and was not appointed in late 2019 as a live-in hostel superintendent. Jeftha had worked for two years as the superintendent at the Izaak February hostel (but not in a live-in post) and spent three years working for the Veritas Secondary school in the Northern Cape.
SUMMARY OF EVIDENCE AND ARGUMENT
The employee’s version and testimony was as follows:-
(5) Irvine Jeftha (level 1 educator) testified that he was aggrieved as three posts had been advertised in 2019 for a live-in hostel superintendent for which positions he had applied. Jeftha had not been appointed to any of the posts and in this regard submitted a grievance to the school on 14 January 2020. On 28 January 2020 Jeftha received feedback from Yvette Appolis (chair of the SGB (School Governing Body)) that he had not been one of the three top candidates for the post. A dispute was lodged with the CCMA where it had run for two years until in 2021 it was found that the dispute lay within the jurisdiction of the ELRC. Jeftha and his union went to the school and received some documents including the shortlist of candidates for the posts. The interviews were held on 7 January 2020. Minnaar was not on the shortlist and Wanza who was not qualified had been on the shortlist. Referring to EE bundle page 4 there are ten candidates on this list who qualified to be appointed to the posts. On EE bundle page 3 there is a list of criteria required for the job amongst which is a drivers’ license; a grade 12 certificate; experience as an educator; preferably a married couple with previous experience working with youth and adults plus the ability to work under pressure. Jeftha believed he fulfilled all the criteria. Wanza however, had no drivers’ license; she was not an educator and had no grade 12 certificate. Jeftha knew this as he had been told so by Wanza. Referring to ER bundle page 10 Jeftha pointed out that Minnaar was not on the shortlist. The person listed as C Minnaar on the shortlist was his wife. Despite Jeftha submitting a grievance the outcome of this was never made known to him and he never got any feedback. The SGB did an investigation and then wrote to Jeftha on 7 December 2020 (EE bundle page 11a). In that letter the SGB stated that the process followed was incorrectly done and the findings of the deputy chair Kiro Smit had been taken into account. Smit had investigated the complaints of Jeftha which is how he came to the conclusion that no real process had been followed in the appointment of the superintendents. Jeftha thereafter had never again spoken to the SGB. A meeting was arranged by NUFBWSAW on 4 October 2020 in an attempt to try to settle the matter. The meeting had gone badly and no minutes were kept. At that meeting Enne Pekeur (secretary) who had been on the interview panel said that she had not awarded any points to Jeftha during the process. Once the documents requested were found it showed that Jeftha was awarded points by others on the panel but the total score had been twenty five and not twenty as expected. Referring to EE bundle page 9 Jeftha pointed out that his total points were out of twenty five and excluding Pekeur Jeftha obtained a total of eighteen points. The author of that page with all the scores was Ernest Humphries (acting principal). Wanza was awarded 21 points and Minnaar 20 out of a maximum of 25 points. On 19 July 2020 Ms L Loff (part of the SGB and a member of the interview panel) wrote a letter addressed to the CCMA in which she stated that Humphries and Pekeur had misled then by telling them to appoint people from within as per the policy but to exclude Jeftha due to the allegations against him which were still under investigation. Loff apologized to Jeftha personally for allowing this to have happened. Loff confirmed that Jeftha had been unfairly treated. That letter meant that Jeftha had not been appointed as Humphries had already determined who should be appointed to the posts. Jeftha added that Humphries was the resource person on the panel and as such should not have been allocating marks. The panel had comprised of four people who all allocated marks. The exact scoring sheets are in the ER bundle pages 11 to 14 and are dated correctly as 7 January 2020. Each member of the panel had their own page to allocate marks during the interview. Jeftha knew Humphries had allocated points as this had been acknowledged at the meeting with NUFBWSAW. The resource person was supposed to be neutral and Jeftha had learned this from SADTU and had assumed that Smit was aware of this fact. Jeftha reiterated that Wanza was not qualified for the post and Minnaar had not been on the shortlist.
(6) In cross-examination and with reference to ER bundle page 8 it was agreed that certain criteria listed were preferable. It was put to Jeftha that Wanza is a church minister which made her a skilled person. Jeftha did not agree that when put in context it meant that she met certain criteria. There was a vigorous debate regarding the meaning of the words ‘vereisters’ (requirements) and ‘verkieslik’ (preferable). It was explained to Jeftha that preferably meant if meets criteria and ‘if possible’. Whereas requirements meant that the person had to meet that criterion. Jeftha continued to disagree and held that every criteria listed had to be met. It was pointed out to Jeftha in point 12 of the criteria having a drivers’ license is a preference. It was explained to Jeftha that there are primary requirements (must haves) for a post and secondary requirements (preferably had). Jeftha continued to disagree on the basis that the advertisement for the post never mentioned what Nobel was now alleging. It was put to Jeftha that the difference exists and the primary criteria needed to be met and the secondary criteria are preferably met but not essential. It was put to Jeftha that the reason why Wanza was appointed was that whilst it is acknowledged that she did not have a grade 12 or a drivers’ license, she had other criteria which were found to be important. Jeftha stuck with the fact that he met all the criteria and should therefore have been appointed. Jeftha claimed he was being victimized by Humphries. Jeftha confirmed that he had not done anything about his claims of victimization and had only sent in the grievance to which he had not received any response. Jeftha claimed that Humphries had held him back from becoming HOD (Head of Department) and had filed untrue cases against him. The allegations against Jeftha had been about him supposedly bullying the children, victimizing them and that he had made inappropriate sexual advances to a girl child. Jeftha had gone to a lawyer two years ago and nothing further happened thereafter as the allegations were not backed up by any evidence. Jeftha confirmed he had last been a superintendent in 2019. It was pointed out that Humphries was part of that appointment of Jeftha. Referring to ER bundle page 9 Jeftha confirmed that there had been five people on the panel. Each gave a score up to a total of five points and Jeftha said Pekeur had not scored him at all. Jeftha confirmed that Humphries is the writer of the total score sheet on ER bundle pages 11 to 13. It was explained to Jeftha that there were five questions asked in the interview and it is the questions which make up the total of twenty five points and not the members of the panel. It was further put to Jeftha that Humphries will say that with less people scoring him, Jeftha had been placed in an advantageous position. Jeftha stated that in his letter he had written about his unhappiness with both Humphries and Pekeur. Jeftha stated that those were the two who made the decisions with the SGB. Jeftha said that Pekeur had allocated him points. It was put to Jeftha that he had always stated that Pekeur never gave him any points and he is now stating that she allocated points to him. Jeftha said it was his opinion that Pekeur never scored him. It was put to Jeftha that he was only scored by four people which had been an advantage to him – still Jeftha disagreed. Jeftha insisted that Minnaar had never been on the shortlist (EE bundle page 10). Jeftha was unaware whether Minnaar applied for the post but held that based solely on the shortlist he should not have been appointed. It was put to Jeftha that he had said that Minnaar had come through the back door to which Jeftha agreed as he was not on the shortlist (EE bundle page 10). The page on EE bundle page 10 is dated 7 January 2020 and Jeftha was unsure when the shortlist had been drawn up. Jeftha was asked whether it would make any difference between mister and missus Minnaar on the shortlist as both qualified and the post was for a married couple. Jeftha held that Mrs. Minnaar did not have a drivers’ license and her husband was not on the shortlist. With reference to the letter from Loff, Jeftha confirmed that he had approached her to find out what had happened. It was put to Jeftha that it was not his place to put together letters and documents in order to further his dispute especially when they are not true.
(7) In re-examination Jeftha confirmed that Pekeur told him she had not allocated any points to him and held that if she had given him points then his score would be greater.
(8) Minnaar referred Jeftha to EE bundle page 10 which was seen by Jeftha as the shortlist for the post. It was held that the list was for the interviews and Pekeur had told Jeftha that there was no shortlist as all who applied were invited for an interview. Therefore the list on EE bundle page 10 was appointments in time slots for interviews and not a shortlist. Jeftha held that it was the shortlist.
(9) Wanza confirmed that she had no grade 12 certificate or a divers’ license. Wanza explained to Jeftha that the post was temporary and ends in December 2021. The hostel post for Minnaar had also been temporary. It was put to Jeftha that he had no skills when dealing with deaf people and therefore he had not been appointed. Jeftha said that nothing was personal but a deaf person had not been mentioned in the advertisement so had not been one of the criteria.
(10) Kiro Smit (vice-chair of the SGB) testified that he had been part of the SGB for almost one year. A panel had been chosen to handle the recruitment of the superintendents and they were expected to then feedback to the SGB. A meeting was held at which the panel was selected to follow the process and keep notes. In 2019 Smit had not been on the SGB and only got involved when the grievances from Jeftha were received. Smit investigated the process followed and spoke with all involved. Smit was at the meeting arranged by NUFBWSAW because the chair of the SGB had asked Smit to do the investigation. Smit had not known anyone previously and no minutes were kept. Smit asked for all the curriculum vitae of the candidates but these were not provided. Smit had been sent a page with ten names although told eleven had applied. Smit established that there were no proper documents to show that a proper process had been followed. Pekeur had said that she had stood outside the hall and had not given Jeftha any points. Smit concluded that the matter had been dealt with without any transparency. When requested Pekeur gave the documents she had signed to Smit and it was evident that she had not scored Jeftha. Pekeur sent the documents but had lied. Pekeur said she never allocated points to Jeftha but later wrote as the secretary she had been standing outside. Smit explained that ER bundle pages 5 and 6 were part of the documents sent to him by Pekeur. Pekeur had not been present but had signed as the secretary. The scoring sheets had been handed out and only Pekeur was not present and Smit therefore found her to be unreliable. Smit always put the needs of the children first as it is them who suffer due to the decisions taken. EE bundle page 10 was the time slots for those invited to be interviewed. Patrick Minnaar was not on that list.
(11) In cross-examination Smit confirmed he joined the SGB in 2020 after the ‘incident’ – meaning when Jeftha referred his grievance to the SGB. Smit confirmed he had signed and authorized the communication on ER bundle pages 19 and 20. Smit left the SGB in February 2021. Smit confirmed after some reminders that his term of office on the SGB was from 4 August 2020 for a period of six months. The chair of the SGB at the time had been Kay Bothma and she had asked Smit to do the investigation. Smit had not previously known Bothma. Smit approached everyone involved to get information. Smit had initially attended meetings to get the documents but when that never worked he approached people individually. It was put to Smit that his was not a proper investigation as he only had one meeting and based on what had been said had drawn his own conclusions which were without substance. Smit said he requested different things from many people. Referring to ER bundle page 19 Smit confirmed that reference was made to a voice note received from Mr. Ruiters who was a candidate and said he had spoken to the principal. The instruction to the panel had been to fill the posts internally. It was put to Smit that all who applied had been interviewed. It was put to Smit that he mentioned the voice note and cannot now say he does not know about it. It was put to Smit that everyone who applied had been interviewed. Referring to ER bundle page 10 it was put to Smit that Ruiters was interviewed and his wife is second on the list. Smit said he had not known everyone. It was put to Smit that Pekeur gave him the minutes and mentioned that Humphries was the resource person (ER bundle page 19). Smit explained that he had concluded that on 3 October 2020 Humphries had been the resource person. It was not allowed that the resource person participates and allocates marks. Smit agreed he had not read anywhere that the resource person cannot allocate marks. It was put to Smit that the information in the report comes directly from Jeftha as evidenced by his attending a meeting on 3 October 2020 and writing the report two months later on 7 December 2020. Smit denied this and said it was his own report following the investigation he carried out. It was put to Smit if the report was his own he would have been aware that there is legislation on ‘the management and control of hostels’ and not only the Children’s Act applied. This was said with reference to the footnote on ER bundle page 20 where Smit had signed.
(12) In re-examination it was confirmed that the arbitration was about Jeftha. Smit felt the SGB had failed Jeftha as they never knew the proper process. Humphries and Pekeur had made their own decisions about who to appoint to the posts.
The employer’s version and testimony was as follows:
(13) Ernest Humphries (acting principal since 2019) testified that towards the end of 2019 it was decided to recruit live-in hostel superintendents and it was intended that the people be appointed to a post level 2 by 2020. The advertisements were drawn up and a total of eleven people were invited to be interviewed. The criteria were also drawn up. Five questions were asked by the late vice chair of the SGB (Yvette Appolis). Humphries added up the points and took the top three to be appointed. In 2019 the superintendents had never slept in the hostels. The panel was appointed by the SGB (only five arrived) after all fifteen had been invited. It had never been intended that Humphries be the resource person although this had been alleged. It was explained that the school had started in 1933 as a special school for the deaf – New Hope Centre for the hearing impaired. Since 2020 the scope was widened to include those who were mildly intellectually learning disabled. Referring to ER bundle page 19 it was pointed out that Smit refers to Humphries as the resource person and Smit had testified that he had spoken to Humphries. Smit had said he was asked to investigate as he had some knowledge regarding the CCMA. Humphries explained that he never spoke to Smit as by that time the matter was already at the CCMA and Humphries did not want to get involved. Referring to EE bundle page 10 Humphries confirmed that the document is a list of ten candidates and Wanza had already been interviewed without her husband so it was decided not to do both Mr. and Mrs. Minnaar simultaneously. Only both the Minnaar’s had applied separately. Humphries is the author of the document on ER bundle page 9 and explained the note of the numeral 4 next to Jeftha’s name is because at the time the panel was hungry and had asked Pekeur to order a pizza. The pizza arrived which led to Pekeur being outside when Jeftha was being interviewed. There were still only five questions but only marked by four of the panel in that instance. Humphries confirmed that Jeftha was not disadvantaged in any way and in fact it was advantageous as Jeftha had claimed that Pekeur had wanted to get rid of him. Humphries confirmed that the criteria for the posts are listed on ER bundle page 8. Humphries explained that Wanza was appointed at the kindergarten school hostel for the children between the ages of 3 to 12 years old who are mostly deaf. Reverend Wanza being deaf is an advantage; she had a background of counselling people in her ministry and was therefore appointed. Humphries is aware of primary plus secondary criteria and preferable criteria are secondary.
(14) In cross-examination Humphries confirmed that sixteen criteria are listed on ER bundle page 8 – some of which are required and some are preferable. In the case of Wanza, she is a minister and is deaf which superseded the other criteria. Wanza is ordained as a minister in the Uniting Reformed Church. It was put to Humphries that the advertisement never mentioned being deaf or having counselling experience. Ten of the eleven candidates were interviewed as the husband of Wanza had not been interviewed. Mr. and Mrs. Minnaar is a married couple but later the two were split for interview purposes. Humphries explained it was about house parents – ‘ma en pa’. Humphries denied that he had a shortlist. The Minnaar’s were split by a decision taken by the panel and they ended up in separate interviews. Humphries denied that Minnaar was not part of the shortlist as it did not exist. It was put to Humphries that five SGB members do not make a quorum. Humphries said the invitation was sent to all fifteen on the SGB and only five arrived. Humphries understood that some were unable to come so had continued with the interviews. It was denied that any decision taken was to adversely affect some of the candidates. It was put to Humphries that Smit said he had investigated the grievance from Jeftha. Humphries explained that he had not wanted to get involved and had only said things in generalities. Humphries was at the meeting held on 3 October 2020 which had been chaired by Smit. Humphries confirmed that Jeftha had not been prejudiced by not being scored by Pekeur. Humphries had not stopped when the pizza arrived as he had not been the chair but only a panel member. Appolis had been the chair and said to carry on. There was nothing to add under re-examination. In answer to a question in clarity from me Humphries denied ever saying not to appoint Jeftha.
(15) I sought clarity on the allegations made against Jeftha which no-one could provide. It was agreed that this subject had to be addressed in the closing arguments which it was agreed would reach me and the Council by no later than 17h00 on 23 November 2021. Closing arguments were received from both parties, the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(16) Jeftha is alleging that he is the victim of an unfair labour practice and as such he bears the onus of proving his claim on a balance of probabilities. Jeftha must prove not only the existence of the labour practice, but also that it is unfair. Jeftha had no problems with the appointment of the superintendent at the Izaak February hostel. Jeftha needs to prove that the decision not to appoint him as the live-in superintendent at one of the other two hostels was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
(17) Looking at the procedure followed it is evident that the SGB decided for the first time to have live-in superintendents at their three hostels. This was to create a ‘home’ for the residents in the hostels. A married couple was thought to be the correct way to go and in the best interests of the residents. The advertisement to which Jeftha responded in fact only listed one essential criterion in that the posts were live-in positions in the hostels. The balance of the criteria could be obtained from the school’s office. A total of eleven applied for the posts and all of them were invited for an interview. The panel came from members of the SGB plus Humphries and Pekeur. The panel decided on the five questions that would be asked and that each candidate would take approximately thirty minutes. A time slot was given to each candidate which is the document on EE bundle page 10 which was confirmed not be a short list. Indeed it was not disputed that there was never a short list as everyone who applied for the posts had been interviewed. Each panelist gave their own score and thereafter the scores were added up and those with the highest scores were appointed. Humphries not the resource person and it was therefore not irregular that he scored the candidates during their interviews. It was further not disputed that the chair of the panel was Appolis and not Humphries. It was in the hands of Appolis as to whether or not to wait for Pekeur to return from collecting the pizza before continuing with the interview of Jeftha and Appolis decided to continue. Jeftha seemed to have understood that no process had been followed which as stated above is not correct. In the circumstances I find on a balance of probabilities that the SGB and school followed a fair procedure in terms of the appointment of the live in superintendents at their hostels.
(18) The top scorers as a result of the process followed by the panel were: (i) Cornellissen 21/25 (84%); Wanza 21/25 (84%) and Minnaar 20/25 (80) who were appointed at the Izaak February Hostel; Toddlers hostel and Caroline Laurence hostel respectively.
(19) During the narrowing of issues it was explained to me that Reverend Wanza was appointed as the superintendent of the Kleuter (toddler) hostel. The DOE is the employer and the funds are governed by the SGB. Wanza is ordained as a minister in the Uniting Reformed Church which paid an amount of R5000.00 per month for the rent of the hostel accommodation. There are house mothers who assist Wanza and all the children at this hostel are deaf. Wanza was the ideal candidate for this hostel as she herself is deaf so had a very real understanding of those who had the same impairment.
During arbitration Wanza acknowledged that she did not have a grade 12 certificate; a drivers’ license and was not an educator. I must point out that during the interviews Wanza scored the same points as Cornellissen and was therefore a joint top scorer. The fact that Wanza is ordained confirms that she underwent training and qualified before she could be ordained. As such Wanza would have other skills that made up for the lack of the criteria stated or superseded them. Whilst the advertisement never mentioned anything about being a deaf person it is logical that such a person would bring a lot of life experiences to a hostel for toddlers who were all deaf. Indeed Wanza was an ideal candidate as she had others skills gained from her ministry and her in depth knowledge of the experiences of those who cannot hear which would bring a huge amount of comfort and understanding to the young residents. I find on a balance of probabilities that it was very fair to have appointed Wanza as the Toddler Hostel Superintendent.
(20) One of the criteria for the post was that it was for a married couple. In the instance of Patrick Minnaar his wife, Me. C Minnaar, was on the list to be interviewed at 14h00. Minnaar during the process scored the second highest score and hence was appointed as superintendent at the Caroline Laurence hostel. I wish to emphasize that all those who applied for the posts were interviewed and there had never been any shortlist. I find on a balance of probabilities that is fair to have appointed the Minnaar couple at the hostel. No evidence was put before me that Minnaar had no experience and the claim by Jeftha is found to be without substance. The claim that Minnaar came through the back door somehow is rejected as no evidence in this regard was put before me.
(21) It is regretted that Jeftha made so many illogical conclusions which seem to have been made to fit his narrative of what occurred and the outcome he sought. It was evident that when under cross-examination that Jeftha was angry and would therefore not accept the logical explanation that some criteria were required and others had been preferable. This distinction is made on the list of criteria and it was obstinate of Jeftha not to have seen this distinction despite this being explained to him numerous times and in different ways. Jeftha raised the matter of the serious allegations he had faced. These will not be taken into account as the DOE never took this matter any further for whatever reasons. Jeftha was not amongst the three highest scoring candidates who were appointed. Humphries and Pekeur were not in control of the process as that was handled by Appolis and I find on a balance of probabilities that the claim that Humphries made the choices as to who to place is without merit and no evidence was placed before me to support this claim. In terms of the scoring Jeftha was still asked the five questions. Humphries took into account the fact that Pekeur had not scored Jeftha and adjusted the scores accordingly. Both the first person on the interview list and Jeftha scored a total of 73 points. The first person was translated into a percentage score of 60% whilst Jeftha was translated to having a score of 72% which confirms that one less panel member scoring Jeftha had been taken into account. It was not disputed that Jeftha had claimed Pekeur wanted to get rid of him and if true maybe it was better that she did not score Jeftha. I have noted that the positions were of a temporary nature and the contracted period of the three superintendents expires at the end of 2021. Given that Ms. Loff (on the SGB) took the time to write a letter to the CCMA (which evidence is inadmissible as it cannot be cross-examined) I am surprised that Jeftha failed to call her as a witness as she was a member of the panel of which Smit had not been.
(22) I find on a balance of probabilities that the process followed and the appointment of the three superintendents were fair. Jeftha was at all times fairly treated and no unfair labour practice was committed.
AWARD
(23) Irvine Jeftha has failed to prove on a balance of probabilities that the employer committed an unfair labour practice when he was not appointed as a live-in superintendent at any of the three hostels. Consequently this case is dismissed.
Gail McEwan
COMMISSIONER
Case No.: ELRC 198-21/22 WC
Date of Award: 29 November 2021
In the ARBITRATION between:
NUFBWSAW obo IRVINE JEFTHA
(Employee)
And
THE DEPARTMENT OF EDUCATION WESTERN CAPE / REVEREND BETTY WANZA AND
PATRICK MINNAAR
(Employer) (Interested Parties)
Union/Employee’s representative: Petrus Mars
Employer’s representative: Bernadine Noble
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
(1) Arbitration was held on 16 November 2021 virtually with the consent of the parties. Present was Irvine Jeftha (employee) who was represented by Petrus Mars (NUFBWSAW). The Department of Education (DOE) (employer) was represented by Bernadine Noble (labour relations officer). Reverend Betty Wanza and Patrick Minnaar were joined as interested parties in a ruling I made on 3 August 2021. These proceedings were digitally recorded; both parties handed in bundles of documents and Daniel Kova was present as an Afrikaans interpreter. A further interpreter Jan Oberholzer was present to interpret (sign language) for Wanza as she is deaf. The dispute had originally been referred to the CCMA and then correctly transferred to the ELRC. Condonation was granted in a ruling dated 28 June 2021 for the late referral of this dispute.
THE ISSUE IN DISPUTE
(2) The dispute is an alleged unfair labour practice in that Jeftha applied for the position of a live-in hostel superintendent and had not been appointed. The advertisement to which Jeftha had responded contained a total of three vacancies all for the same position but at different hostels. Jeftha held that he would have preferred to have been placed at the Izaak February hostel as the superintendent. Jeftha had no problems with the appointment of Rodney Cornellison into that hostel. Jeftha put into dispute the appointment at the other two hostels superintendents. Jeftha held that Betty Wanza did not hold the requisite qualifications in that she was not an educator; did not have a grade 12 certificate nor had a drivers’ license. Patrick Minnaar according to Jeftha had no experience and had never been on the short list. It was the appointment of the two abovenamed which Jeftha felt to be unfair as he believed he should have been appointed.
(3) I have considered all the evidence and argument, but because the LRA requires brief reasons (section 138(7)), I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
THE BACKGROUND TO THE DISPUTE
(4) Jeftha started working for the employer on 1 August 1999; worked as a level 1 educator; earned R35 000.00 per month and was not appointed in late 2019 as a live-in hostel superintendent. Jeftha had worked for two years as the superintendent at the Izaak February hostel (but not in a live-in post) and spent three years working for the Veritas Secondary school in the Northern Cape.
SUMMARY OF EVIDENCE AND ARGUMENT
The employee’s version and testimony was as follows:-
(5) Irvine Jeftha (level 1 educator) testified that he was aggrieved as three posts had been advertised in 2019 for a live-in hostel superintendent for which positions he had applied. Jeftha had not been appointed to any of the posts and in this regard submitted a grievance to the school on 14 January 2020. On 28 January 2020 Jeftha received feedback from Yvette Appolis (chair of the SGB (School Governing Body)) that he had not been one of the three top candidates for the post. A dispute was lodged with the CCMA where it had run for two years until in 2021 it was found that the dispute lay within the jurisdiction of the ELRC. Jeftha and his union went to the school and received some documents including the shortlist of candidates for the posts. The interviews were held on 7 January 2020. Minnaar was not on the shortlist and Wanza who was not qualified had been on the shortlist. Referring to EE bundle page 4 there are ten candidates on this list who qualified to be appointed to the posts. On EE bundle page 3 there is a list of criteria required for the job amongst which is a drivers’ license; a grade 12 certificate; experience as an educator; preferably a married couple with previous experience working with youth and adults plus the ability to work under pressure. Jeftha believed he fulfilled all the criteria. Wanza however, had no drivers’ license; she was not an educator and had no grade 12 certificate. Jeftha knew this as he had been told so by Wanza. Referring to ER bundle page 10 Jeftha pointed out that Minnaar was not on the shortlist. The person listed as C Minnaar on the shortlist was his wife. Despite Jeftha submitting a grievance the outcome of this was never made known to him and he never got any feedback. The SGB did an investigation and then wrote to Jeftha on 7 December 2020 (EE bundle page 11a). In that letter the SGB stated that the process followed was incorrectly done and the findings of the deputy chair Kiro Smit had been taken into account. Smit had investigated the complaints of Jeftha which is how he came to the conclusion that no real process had been followed in the appointment of the superintendents. Jeftha thereafter had never again spoken to the SGB. A meeting was arranged by NUFBWSAW on 4 October 2020 in an attempt to try to settle the matter. The meeting had gone badly and no minutes were kept. At that meeting Enne Pekeur (secretary) who had been on the interview panel said that she had not awarded any points to Jeftha during the process. Once the documents requested were found it showed that Jeftha was awarded points by others on the panel but the total score had been twenty five and not twenty as expected. Referring to EE bundle page 9 Jeftha pointed out that his total points were out of twenty five and excluding Pekeur Jeftha obtained a total of eighteen points. The author of that page with all the scores was Ernest Humphries (acting principal). Wanza was awarded 21 points and Minnaar 20 out of a maximum of 25 points. On 19 July 2020 Ms L Loff (part of the SGB and a member of the interview panel) wrote a letter addressed to the CCMA in which she stated that Humphries and Pekeur had misled then by telling them to appoint people from within as per the policy but to exclude Jeftha due to the allegations against him which were still under investigation. Loff apologized to Jeftha personally for allowing this to have happened. Loff confirmed that Jeftha had been unfairly treated. That letter meant that Jeftha had not been appointed as Humphries had already determined who should be appointed to the posts. Jeftha added that Humphries was the resource person on the panel and as such should not have been allocating marks. The panel had comprised of four people who all allocated marks. The exact scoring sheets are in the ER bundle pages 11 to 14 and are dated correctly as 7 January 2020. Each member of the panel had their own page to allocate marks during the interview. Jeftha knew Humphries had allocated points as this had been acknowledged at the meeting with NUFBWSAW. The resource person was supposed to be neutral and Jeftha had learned this from SADTU and had assumed that Smit was aware of this fact. Jeftha reiterated that Wanza was not qualified for the post and Minnaar had not been on the shortlist.
(6) In cross-examination and with reference to ER bundle page 8 it was agreed that certain criteria listed were preferable. It was put to Jeftha that Wanza is a church minister which made her a skilled person. Jeftha did not agree that when put in context it meant that she met certain criteria. There was a vigorous debate regarding the meaning of the words ‘vereisters’ (requirements) and ‘verkieslik’ (preferable). It was explained to Jeftha that preferably meant if meets criteria and ‘if possible’. Whereas requirements meant that the person had to meet that criterion. Jeftha continued to disagree and held that every criteria listed had to be met. It was pointed out to Jeftha in point 12 of the criteria having a drivers’ license is a preference. It was explained to Jeftha that there are primary requirements (must haves) for a post and secondary requirements (preferably had). Jeftha continued to disagree on the basis that the advertisement for the post never mentioned what Nobel was now alleging. It was put to Jeftha that the difference exists and the primary criteria needed to be met and the secondary criteria are preferably met but not essential. It was put to Jeftha that the reason why Wanza was appointed was that whilst it is acknowledged that she did not have a grade 12 or a drivers’ license, she had other criteria which were found to be important. Jeftha stuck with the fact that he met all the criteria and should therefore have been appointed. Jeftha claimed he was being victimized by Humphries. Jeftha confirmed that he had not done anything about his claims of victimization and had only sent in the grievance to which he had not received any response. Jeftha claimed that Humphries had held him back from becoming HOD (Head of Department) and had filed untrue cases against him. The allegations against Jeftha had been about him supposedly bullying the children, victimizing them and that he had made inappropriate sexual advances to a girl child. Jeftha had gone to a lawyer two years ago and nothing further happened thereafter as the allegations were not backed up by any evidence. Jeftha confirmed he had last been a superintendent in 2019. It was pointed out that Humphries was part of that appointment of Jeftha. Referring to ER bundle page 9 Jeftha confirmed that there had been five people on the panel. Each gave a score up to a total of five points and Jeftha said Pekeur had not scored him at all. Jeftha confirmed that Humphries is the writer of the total score sheet on ER bundle pages 11 to 13. It was explained to Jeftha that there were five questions asked in the interview and it is the questions which make up the total of twenty five points and not the members of the panel. It was further put to Jeftha that Humphries will say that with less people scoring him, Jeftha had been placed in an advantageous position. Jeftha stated that in his letter he had written about his unhappiness with both Humphries and Pekeur. Jeftha stated that those were the two who made the decisions with the SGB. Jeftha said that Pekeur had allocated him points. It was put to Jeftha that he had always stated that Pekeur never gave him any points and he is now stating that she allocated points to him. Jeftha said it was his opinion that Pekeur never scored him. It was put to Jeftha that he was only scored by four people which had been an advantage to him – still Jeftha disagreed. Jeftha insisted that Minnaar had never been on the shortlist (EE bundle page 10). Jeftha was unaware whether Minnaar applied for the post but held that based solely on the shortlist he should not have been appointed. It was put to Jeftha that he had said that Minnaar had come through the back door to which Jeftha agreed as he was not on the shortlist (EE bundle page 10). The page on EE bundle page 10 is dated 7 January 2020 and Jeftha was unsure when the shortlist had been drawn up. Jeftha was asked whether it would make any difference between mister and missus Minnaar on the shortlist as both qualified and the post was for a married couple. Jeftha held that Mrs. Minnaar did not have a drivers’ license and her husband was not on the shortlist. With reference to the letter from Loff, Jeftha confirmed that he had approached her to find out what had happened. It was put to Jeftha that it was not his place to put together letters and documents in order to further his dispute especially when they are not true.
(7) In re-examination Jeftha confirmed that Pekeur told him she had not allocated any points to him and held that if she had given him points then his score would be greater.
(8) Minnaar referred Jeftha to EE bundle page 10 which was seen by Jeftha as the shortlist for the post. It was held that the list was for the interviews and Pekeur had told Jeftha that there was no shortlist as all who applied were invited for an interview. Therefore the list on EE bundle page 10 was appointments in time slots for interviews and not a shortlist. Jeftha held that it was the shortlist.
(9) Wanza confirmed that she had no grade 12 certificate or a divers’ license. Wanza explained to Jeftha that the post was temporary and ends in December 2021. The hostel post for Minnaar had also been temporary. It was put to Jeftha that he had no skills when dealing with deaf people and therefore he had not been appointed. Jeftha said that nothing was personal but a deaf person had not been mentioned in the advertisement so had not been one of the criteria.
(10) Kiro Smit (vice-chair of the SGB) testified that he had been part of the SGB for almost one year. A panel had been chosen to handle the recruitment of the superintendents and they were expected to then feedback to the SGB. A meeting was held at which the panel was selected to follow the process and keep notes. In 2019 Smit had not been on the SGB and only got involved when the grievances from Jeftha were received. Smit investigated the process followed and spoke with all involved. Smit was at the meeting arranged by NUFBWSAW because the chair of the SGB had asked Smit to do the investigation. Smit had not known anyone previously and no minutes were kept. Smit asked for all the curriculum vitae of the candidates but these were not provided. Smit had been sent a page with ten names although told eleven had applied. Smit established that there were no proper documents to show that a proper process had been followed. Pekeur had said that she had stood outside the hall and had not given Jeftha any points. Smit concluded that the matter had been dealt with without any transparency. When requested Pekeur gave the documents she had signed to Smit and it was evident that she had not scored Jeftha. Pekeur sent the documents but had lied. Pekeur said she never allocated points to Jeftha but later wrote as the secretary she had been standing outside. Smit explained that ER bundle pages 5 and 6 were part of the documents sent to him by Pekeur. Pekeur had not been present but had signed as the secretary. The scoring sheets had been handed out and only Pekeur was not present and Smit therefore found her to be unreliable. Smit always put the needs of the children first as it is them who suffer due to the decisions taken. EE bundle page 10 was the time slots for those invited to be interviewed. Patrick Minnaar was not on that list.
(11) In cross-examination Smit confirmed he joined the SGB in 2020 after the ‘incident’ – meaning when Jeftha referred his grievance to the SGB. Smit confirmed he had signed and authorized the communication on ER bundle pages 19 and 20. Smit left the SGB in February 2021. Smit confirmed after some reminders that his term of office on the SGB was from 4 August 2020 for a period of six months. The chair of the SGB at the time had been Kay Bothma and she had asked Smit to do the investigation. Smit had not previously known Bothma. Smit approached everyone involved to get information. Smit had initially attended meetings to get the documents but when that never worked he approached people individually. It was put to Smit that his was not a proper investigation as he only had one meeting and based on what had been said had drawn his own conclusions which were without substance. Smit said he requested different things from many people. Referring to ER bundle page 19 Smit confirmed that reference was made to a voice note received from Mr. Ruiters who was a candidate and said he had spoken to the principal. The instruction to the panel had been to fill the posts internally. It was put to Smit that all who applied had been interviewed. It was put to Smit that he mentioned the voice note and cannot now say he does not know about it. It was put to Smit that everyone who applied had been interviewed. Referring to ER bundle page 10 it was put to Smit that Ruiters was interviewed and his wife is second on the list. Smit said he had not known everyone. It was put to Smit that Pekeur gave him the minutes and mentioned that Humphries was the resource person (ER bundle page 19). Smit explained that he had concluded that on 3 October 2020 Humphries had been the resource person. It was not allowed that the resource person participates and allocates marks. Smit agreed he had not read anywhere that the resource person cannot allocate marks. It was put to Smit that the information in the report comes directly from Jeftha as evidenced by his attending a meeting on 3 October 2020 and writing the report two months later on 7 December 2020. Smit denied this and said it was his own report following the investigation he carried out. It was put to Smit if the report was his own he would have been aware that there is legislation on ‘the management and control of hostels’ and not only the Children’s Act applied. This was said with reference to the footnote on ER bundle page 20 where Smit had signed.
(12) In re-examination it was confirmed that the arbitration was about Jeftha. Smit felt the SGB had failed Jeftha as they never knew the proper process. Humphries and Pekeur had made their own decisions about who to appoint to the posts.
The employer’s version and testimony was as follows:
(13) Ernest Humphries (acting principal since 2019) testified that towards the end of 2019 it was decided to recruit live-in hostel superintendents and it was intended that the people be appointed to a post level 2 by 2020. The advertisements were drawn up and a total of eleven people were invited to be interviewed. The criteria were also drawn up. Five questions were asked by the late vice chair of the SGB (Yvette Appolis). Humphries added up the points and took the top three to be appointed. In 2019 the superintendents had never slept in the hostels. The panel was appointed by the SGB (only five arrived) after all fifteen had been invited. It had never been intended that Humphries be the resource person although this had been alleged. It was explained that the school had started in 1933 as a special school for the deaf – New Hope Centre for the hearing impaired. Since 2020 the scope was widened to include those who were mildly intellectually learning disabled. Referring to ER bundle page 19 it was pointed out that Smit refers to Humphries as the resource person and Smit had testified that he had spoken to Humphries. Smit had said he was asked to investigate as he had some knowledge regarding the CCMA. Humphries explained that he never spoke to Smit as by that time the matter was already at the CCMA and Humphries did not want to get involved. Referring to EE bundle page 10 Humphries confirmed that the document is a list of ten candidates and Wanza had already been interviewed without her husband so it was decided not to do both Mr. and Mrs. Minnaar simultaneously. Only both the Minnaar’s had applied separately. Humphries is the author of the document on ER bundle page 9 and explained the note of the numeral 4 next to Jeftha’s name is because at the time the panel was hungry and had asked Pekeur to order a pizza. The pizza arrived which led to Pekeur being outside when Jeftha was being interviewed. There were still only five questions but only marked by four of the panel in that instance. Humphries confirmed that Jeftha was not disadvantaged in any way and in fact it was advantageous as Jeftha had claimed that Pekeur had wanted to get rid of him. Humphries confirmed that the criteria for the posts are listed on ER bundle page 8. Humphries explained that Wanza was appointed at the kindergarten school hostel for the children between the ages of 3 to 12 years old who are mostly deaf. Reverend Wanza being deaf is an advantage; she had a background of counselling people in her ministry and was therefore appointed. Humphries is aware of primary plus secondary criteria and preferable criteria are secondary.
(14) In cross-examination Humphries confirmed that sixteen criteria are listed on ER bundle page 8 – some of which are required and some are preferable. In the case of Wanza, she is a minister and is deaf which superseded the other criteria. Wanza is ordained as a minister in the Uniting Reformed Church. It was put to Humphries that the advertisement never mentioned being deaf or having counselling experience. Ten of the eleven candidates were interviewed as the husband of Wanza had not been interviewed. Mr. and Mrs. Minnaar is a married couple but later the two were split for interview purposes. Humphries explained it was about house parents – ‘ma en pa’. Humphries denied that he had a shortlist. The Minnaar’s were split by a decision taken by the panel and they ended up in separate interviews. Humphries denied that Minnaar was not part of the shortlist as it did not exist. It was put to Humphries that five SGB members do not make a quorum. Humphries said the invitation was sent to all fifteen on the SGB and only five arrived. Humphries understood that some were unable to come so had continued with the interviews. It was denied that any decision taken was to adversely affect some of the candidates. It was put to Humphries that Smit said he had investigated the grievance from Jeftha. Humphries explained that he had not wanted to get involved and had only said things in generalities. Humphries was at the meeting held on 3 October 2020 which had been chaired by Smit. Humphries confirmed that Jeftha had not been prejudiced by not being scored by Pekeur. Humphries had not stopped when the pizza arrived as he had not been the chair but only a panel member. Appolis had been the chair and said to carry on. There was nothing to add under re-examination. In answer to a question in clarity from me Humphries denied ever saying not to appoint Jeftha.
(15) I sought clarity on the allegations made against Jeftha which no-one could provide. It was agreed that this subject had to be addressed in the closing arguments which it was agreed would reach me and the Council by no later than 17h00 on 23 November 2021. Closing arguments were received from both parties, the contents of which have been noted.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
(16) Jeftha is alleging that he is the victim of an unfair labour practice and as such he bears the onus of proving his claim on a balance of probabilities. Jeftha must prove not only the existence of the labour practice, but also that it is unfair. Jeftha had no problems with the appointment of the superintendent at the Izaak February hostel. Jeftha needs to prove that the decision not to appoint him as the live-in superintendent at one of the other two hostels was unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
(17) Looking at the procedure followed it is evident that the SGB decided for the first time to have live-in superintendents at their three hostels. This was to create a ‘home’ for the residents in the hostels. A married couple was thought to be the correct way to go and in the best interests of the residents. The advertisement to which Jeftha responded in fact only listed one essential criterion in that the posts were live-in positions in the hostels. The balance of the criteria could be obtained from the school’s office. A total of eleven applied for the posts and all of them were invited for an interview. The panel came from members of the SGB plus Humphries and Pekeur. The panel decided on the five questions that would be asked and that each candidate would take approximately thirty minutes. A time slot was given to each candidate which is the document on EE bundle page 10 which was confirmed not be a short list. Indeed it was not disputed that there was never a short list as everyone who applied for the posts had been interviewed. Each panelist gave their own score and thereafter the scores were added up and those with the highest scores were appointed. Humphries not the resource person and it was therefore not irregular that he scored the candidates during their interviews. It was further not disputed that the chair of the panel was Appolis and not Humphries. It was in the hands of Appolis as to whether or not to wait for Pekeur to return from collecting the pizza before continuing with the interview of Jeftha and Appolis decided to continue. Jeftha seemed to have understood that no process had been followed which as stated above is not correct. In the circumstances I find on a balance of probabilities that the SGB and school followed a fair procedure in terms of the appointment of the live in superintendents at their hostels.
(18) The top scorers as a result of the process followed by the panel were: (i) Cornellissen 21/25 (84%); Wanza 21/25 (84%) and Minnaar 20/25 (80) who were appointed at the Izaak February Hostel; Toddlers hostel and Caroline Laurence hostel respectively.
(19) During the narrowing of issues it was explained to me that Reverend Wanza was appointed as the superintendent of the Kleuter (toddler) hostel. The DOE is the employer and the funds are governed by the SGB. Wanza is ordained as a minister in the Uniting Reformed Church which paid an amount of R5000.00 per month for the rent of the hostel accommodation. There are house mothers who assist Wanza and all the children at this hostel are deaf. Wanza was the ideal candidate for this hostel as she herself is deaf so had a very real understanding of those who had the same impairment.
During arbitration Wanza acknowledged that she did not have a grade 12 certificate; a drivers’ license and was not an educator. I must point out that during the interviews Wanza scored the same points as Cornellissen and was therefore a joint top scorer. The fact that Wanza is ordained confirms that she underwent training and qualified before she could be ordained. As such Wanza would have other skills that made up for the lack of the criteria stated or superseded them. Whilst the advertisement never mentioned anything about being a deaf person it is logical that such a person would bring a lot of life experiences to a hostel for toddlers who were all deaf. Indeed Wanza was an ideal candidate as she had others skills gained from her ministry and her in depth knowledge of the experiences of those who cannot hear which would bring a huge amount of comfort and understanding to the young residents. I find on a balance of probabilities that it was very fair to have appointed Wanza as the Toddler Hostel Superintendent.
(20) One of the criteria for the post was that it was for a married couple. In the instance of Patrick Minnaar his wife, Me. C Minnaar, was on the list to be interviewed at 14h00. Minnaar during the process scored the second highest score and hence was appointed as superintendent at the Caroline Laurence hostel. I wish to emphasize that all those who applied for the posts were interviewed and there had never been any shortlist. I find on a balance of probabilities that is fair to have appointed the Minnaar couple at the hostel. No evidence was put before me that Minnaar had no experience and the claim by Jeftha is found to be without substance. The claim that Minnaar came through the back door somehow is rejected as no evidence in this regard was put before me.
(21) It is regretted that Jeftha made so many illogical conclusions which seem to have been made to fit his narrative of what occurred and the outcome he sought. It was evident that when under cross-examination that Jeftha was angry and would therefore not accept the logical explanation that some criteria were required and others had been preferable. This distinction is made on the list of criteria and it was obstinate of Jeftha not to have seen this distinction despite this being explained to him numerous times and in different ways. Jeftha raised the matter of the serious allegations he had faced. These will not be taken into account as the DOE never took this matter any further for whatever reasons. Jeftha was not amongst the three highest scoring candidates who were appointed. Humphries and Pekeur were not in control of the process as that was handled by Appolis and I find on a balance of probabilities that the claim that Humphries made the choices as to who to place is without merit and no evidence was placed before me to support this claim. In terms of the scoring Jeftha was still asked the five questions. Humphries took into account the fact that Pekeur had not scored Jeftha and adjusted the scores accordingly. Both the first person on the interview list and Jeftha scored a total of 73 points. The first person was translated into a percentage score of 60% whilst Jeftha was translated to having a score of 72% which confirms that one less panel member scoring Jeftha had been taken into account. It was not disputed that Jeftha had claimed Pekeur wanted to get rid of him and if true maybe it was better that she did not score Jeftha. I have noted that the positions were of a temporary nature and the contracted period of the three superintendents expires at the end of 2021. Given that Ms. Loff (on the SGB) took the time to write a letter to the CCMA (which evidence is inadmissible as it cannot be cross-examined) I am surprised that Jeftha failed to call her as a witness as she was a member of the panel of which Smit had not been.
(22) I find on a balance of probabilities that the process followed and the appointment of the three superintendents were fair. Jeftha was at all times fairly treated and no unfair labour practice was committed.
AWARD
(23) Irvine Jeftha has failed to prove on a balance of probabilities that the employer committed an unfair labour practice when he was not appointed as a live-in superintendent at any of the three hostels. Consequently this case is dismissed.
Gail McEwan
COMMISSIONER