Case Number: ELRC794-20/21NW
Commissioner: Clint Enslin
Date of Ruling: 13 December 2021
In the matter between
S Moruthane First applicant
D Kgakatsi Second applicant
Department of Education – North West, First respondent
T Sekoto Second respondent
Mr David Manonye (SADTU) – first applicant
Mr Joseph Sene (SADTU) -second applicant
Telephone: 0760128829 (Mr Manonye) / 0663065885 (Mr Sene)
Respondent’s representative: Ms Boitumelo Phuswane (DOE NW) – first respondent
Mr Seitshiro Molete (SADTU) – second respondent
Telephone: 0768243356 (Ms Phuswane) / 0646514776 (Mr Molete)
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute (promotion/appointment), referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 (the LRA), was held on zoom online platform, on 26 May 2021, 16 August 2021, 29 and 30 September 2021, 25 October 2021 and 23 November 2021.
2. The first applicant, Ms Moruthane was represented by Mr Manonye of the South African Democratic Teacher Union (SADTU), a registered trade union. The second applicant, Mr Kgakatsi was represented by Mr Senne, also from SADTU. The first respondent, the Department of Education – North West, was represented by Ms Phuswane, a Labour Relations Officer for the first respondent, the second respondent, Mr Sekoto, was represented by Mr Molete, from SADTU.
3. The hearing was held in English and was digitally recorded.
4. Parties agreed to submit closing arguments by no later than 29 November 2021. Both the first applicant as well as first respondent did so.
Issue to be decided
5. The issue to be decided is whether the non-appointment of the first applicant to the position of Deputy Chief Education Specialist (DCES), which she applied and was interviewed for, amounts to an unfair labour practice and if so, determine appropriate relief.
Background to the matter
6. The first and second applicants each referred an alleged unfair labour practice dispute pertaining to promotion/appointment.
7. As a result of an application, brought by the first respondent at the sitting of 23 May 2021, a consolidation ruling was issued, consolidating the two Applicants’ matters.
8. After the conclusion of the arbitration, but prior to the rendering of this award, it was brought to my attention that there had been a written settlement of the dispute with the second applicant. As such, I am no longer required to render an award in relation to the second applicant and this award will only deal with the first applicant’s dispute against the Respondents.
9. The parties concluded a pre-arb minute and submitted bundles of documents. For ease of reference, I will refer to the first applicant’s bundle as “A1”, the second applicant’s bundle as “A2” and the first respondent’s bundle as “R1”. I was also furnished with a copy of circular 58 of 2020 as well as a copy of the first respondent’s PAM document. The first respondent added three loose pages to its bundle, which had been left out by mistake.
10. The first applicant sought that the successful candidate’s (second respondent) appointment be set aside and that she be appointed in the said position.
11. The following facts are common cause:
a. The first applicant was in the position of Senior Education Specialist (SES) – School Enrichment, a post level 3 post, at the time of her application for the post in dispute.
b. The second respondent was in the position of Principal at Hakboslaagte Primary School, a post level 4 post, at the time of his application for the post in dispute.
c. The first applicant as well as the second respondent applied for the post of Deputy Chief Education Specialist (DCES), which was advertised in departmental circular 29 of 2019, under post number DCES/SEP/01. This post is a post level 5 post for an office-based educator.
d. The position applied for (DCES) would result in a promotion for both the first applicant as well as the second respondent.
e. Both the first applicant as well as the second respondent were shortlisted and interviewed for the position of DCES.
f. Following the interview/s the first applicant was ranked third and the second respondent was ranked second.
g. The second respondent was subsequently appointed to the position in dispute on 1 March 2021.
12. The following facts are in dispute:
a. That the first respondent violated guideline 4.2.2 of departmental circular 58 of 2020.
b. That the second respondent met the requirements of the post, as advertised.
c. That the first respondent correctly applied affirmative action in relation to the appointment of the second respondent instead of the first applicant.
d. That the first applicant was the best candidate.
Survey of evidence
13. This award constitutes a brief summary of evidence, argument and my reasons for the award issued in terms of Section 138 (7)(a), of the LRA, relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
First applicant’s case
14. Ms Moruthane testified that she did not believe that the second respondent qualified for the post in dispute, as per the advertisement for the position on page 13 of R1. She had been involved in school enrichment since 2007 and been an educator since 1991. She had also been involved in school sport structures since 1991. There were usually meetings at provincial level and yet she had never seen the second respondent. Also, the second respondent had not mentioned anything about school sports in his CV on page 66 of R1, under the heading “Brief Biography and Career Highlights.”
15. There were 136 males and 118 females in the position of DCES in the North West. There were five persons in the position of DCES (Sport) in particular and all were male. The first applicant is an African female and the second respondent is an African male.
16. She believed she was the best candidate as she possessed the required three year teaching qualification in sport. This was a three year diploma which included Physical Education. In terms of experience, she had also been employed by the Department of Education as a Senior Education Specialist (SES) dealing with school enrichment, which includes school sport, from 2008 to date. This experience was in line with the duties of the advertised post. She was the only one of the interviewed candidates that had experience in all the duties mentioned in the advertised post. She had been responsible for multiple codes (different types of sport).
17. She conceded that she did not believe that the first respondent had violated circular 58 of 2020 in making the appointment in question, however, she felt that she should have been appointed as an African female in terms of affirmative action.
18. She confirmed that she believed that the second respondent did not have appropriate experience in sports, as per the advertisement. This was due to the fact that the post in dispute was for school enrichment, which means school sport and the second respondent did not have experience in school sports. She believed experience in school sports was required as it was a post for school enrichment, despite the advertisement only referring to experience in sport, under the category “Experience and knowledge”, and not experience in school sport. She reluctantly agreed that the advertisement did not refer to school sport, but again confirmed that to her, the use of the word “appropriate” meant school sport.
19. With reference to the three pages that the first respondent added (part of the second respondent’s CV), she conceded that the second respondent had some school sport experience, but did not believe it was enough, as per the eight year requirement. She also believed that the second respondent’s experience in sport was mainly limited to football (1 code), whilst she had experience in different codes. She further conceded that the advertisement did not refer to eight years’ experience in school sport and that this requirement was her own view, based on her experience in school sports.
20. Page 102 of R1, which is part of the minutes of the shortlisting, reads: “The following criteria were observed during the second round of elimination: the candidate must demonstrate extensive knowledge and experience in sports [3-5 years] – school sports, sports organiser and OR as sports board member.” Although she believed that the reference to “Sport organiser” referred to school sports, she agreed that the second respondent was a sports board member and that he met the requirements of experience as per page 102 of R1, over and above what the advertisement required.
21. She acknowledged that the three year qualification in sport, which she submits that she has, refers to her diploma in education, of which one module was physical education. As such the qualification itself is not in sport, but one of the modules taken over the three years.
22. According to PAM, the equity targets should be 50/50. She referred to pages 94-98 of the PAM document. Particularly to B.5.1.1, which reads: In the making of any appointment or the filling of any post on any educator establishment due regard must be given to equality…”, B.220.127.116.11, which reads: “The need to redress the imbalances of the past in order to achieve broad representation. (Section 7, EEA, 1998) and B.5.6.6, which reads “In considering the applications, the Interview Committee must ensure that the principles of equity, redress and representivity are complied with…” She was therefore relying on the principle of equity.
23. She agreed that affirmative action (“AA”) was designed for suitably qualified people from designated groups and that, as a black male, the second respondent qualified in terms of AA, as he falls within the group defined as “blacks. She, however, did not agree that he could therefore be considered as she was of the view that males should not be more than females. She confirmed that her understanding of “equity” was that it always means 50/50 for purposes of affirmative action. She further agreed that both her and the second respondent were shortlisted, interviewed and had equal opportunity to compete for the post. She also agreed that second the respondent was ranked in position two while she was ranked in position three.
24. She further believed she was the best candidate out of the shortlisted candidates, as she had traceable experience in school enrichment as per the duties set out in the advertisement. She was currently responsible for same at a lower level. She was the only one with experience in all the required duties. She has done physical education and the advertisement requires three years teaching qualification in sport. More females were required for field trips with the pupils as female educators needed to accompany the female pupils. The first respondent did have a plan in place for this issue though. She agreed that “duties” refer to what the incumbent will be doing and that this differs to the requirements listed under “experience”.
25. She believed that as the first respondent had already deviated by not appointing the candidate ranked number 1, they should have considered her experience as well as the fact that she was a female and appointed her. She, however, agreed that in terms of ranking, position 1 was better than position 2 and that position 2 was again better than position 3.
26. Page 110 of R1 was the approval for the filling of the post and the Deputy Director General had recommended in terms of the AA targets contained on this page. Although “African Male” was ranked number 1 in terms of priority, she did not agree with this as African Males were more than African Females. She did not know when last the figures that she was basing her view on were updated, but had been the figures of 118 females and 136 males when she went to Mafokeng to confirm, immediately after the second respondent was introduced to them on 1 March 2020.
27. Although the second applicant testified on his own behalf, due to the settlement reached with him and the fact that his testimony had no direct effect on the first Respondent’s case, I find no need to deal with it in this summary.
First respondent’s case
28. Mr Sekoto, the second respondent testified for the first respondent. He testified that he was appointed into the position in dispute, being that of DCES. He confirmed that what was captured in his CV was correct. He further confirmed that pages 65 and 66 of R1 together with the three extra pages, handed in by the first respondent, were his CV which he had submitted when applying for the position. In terms of the middle page of the three extra pages, under the heading “Administrative Records”, he had experience serving on sports boards, in sports confederations and committees. This experience ran from 2012.
29. On the same page, under the heading “School Sports Administration Records”, he confirmed that he coached school sport between 2003 and 2009 and he has a coaching qualification. He was also a schools sports co-ordinator from 2008 until 2013, provincial school football technical committee member from 2008 until 2014, DITSBOTLA school football chairperson from 2009 until 2014 and was school sports advisor to various Members of the Executive Council (MEC’s) from 2016 onwards. He had included the names of the relevant MEC’s in case check-ups or references were needed.
30. He felt that he met the requirements as he not only dealt with school sport, but also with various panels on higher levels advising inter alia on development of school sports. He had co-ordinated sport at his previous primary school for approximately eight years and for another four years at the primary school he worked at prior to his appointment.
31. He held a diploma in education. He also held an advanced diploma in education, which included, inter alia movement science, multi –disciplinary perspective in sports, sports science, emergency and first aid on sport and general sport and recreation principles, as modules. He submitted that he qualified for the position both in terms of the advertised requirements as well as the additional requirements as he had vast experience and qualifications that were sport related. He further believed that he also qualified in terms of AA, as an African male.
32. He confirmed that he had written that the post level of his post was 2 as all were aware that principal posts (such as the one he held) are all post level 4, but are then further divided up and his post was level 2. As his post was that of a principal it was common knowledge that it was a level 4. He had written 2 in order to indicate the level of principal post he had held.
33. He denied that his experience was more with SAFA than SASFA, as school based competitions were under the auspices of SASFA. He agreed that football was one code and that there were various codes in sport. He denied that his experience was in football only and stated that his dealings with federations as MEC advisor has been broad since 2012 and was not limited to football. Prior to this, at school level, it was mainly football. During his tenor as sports organiser at the schools, he dealt with all school codes at the schools.
34. Mr Omphile Motaung, Director HR Management of the first respondent, was the first respondent’s second witness and testified that he knew the human resources (HR) policies. He was also the equity manager of the North West. He explained how equity targets are planned and that once the plan is approved, all recruitment HR would indicate to the interview meeting what the equity targets are. The panel would then try to observe same. The first respondent did not currently have an approved plan, but only had a draft which has been submitted for approval. A draft plan could not be used in selection and recruitment. As such HR would not have shared same. The statistics would, however, sometimes be considered by the HOD before appointing.
35. When appointing, the category/level of the position, such as top management, senior management, middle management, junior management, etc. was considered and not the position itself. The post in dispute, DCES, was at junior management level. On this level/category, males were under-represented. It would therefore not be wrong for the first respondent to appoint a male over a female for this post. The appointed person also fell within the designated group.
36. He testified further that “equity” refers to fairness of representation on all levels. The starting point is the demographics of the Economically Active Population (“EAP”) of the province and that this was then scaled down to the workplace. Equity does not refer to a 50/50 balance, but rather to the demographics of the EAP in the province, which is scaled down to the workplace. The plan has a life span with targets. Page 110 of R1 reflected the targets at junior management level. HR prepares the submission for the HOD. This then goes via the relevant line and HR management.
37. The second respondent confirmed that he was satisfied with the testimony he had given as witness for the first respondent and did not wish to add anything. .
38. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.
39. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.
40. It is common cause that the Applicant challenged the alleged unfairness of her non-appointment, to the post of DCES School Enrichment, on the basis of:
a. The first respondent having violated Departmental Circular 58 of 2020.
b. The second respondent not having met the required experience for the post as per the advertisement.
c. The first respondent’s failure to correctly apply affirmative action measures.
d. The first applicant having been the best candidate.
Violation of Circular 58 of 2020.
41. During cross examination the first applicant conceded that she no longer believed that the first respondent had violated Circular 58 of 2020. As such, I see no need to further deal with this claim. As I have it, this claim was effectively abandoned as a result of the said concession.
Second respondent not meeting the required experience of the post as per the advertisement
42. In terms of the advertisement for the post in dispute, the following experience and knowledge is required, “Eight (8) years actual teaching and appropriate experience in sports. In-depth knowledge of the Acts, regulations, prescripts and relevant policies in education.” The first applicant specifically claimed that the second respondent did not have experience in school sports. I am of the view that if experience in school sports was the requirement, instead of sport in general, it would have specifically have been mentioned. As the advertisement stands, it makes no mention of school sports under “Experience and knowledge”. The Applicant submitted that the post is for school enrichment and therefore the requirement of experience in sport automatically refers to school sports. I do not agree with this interpretation for the reason given above. The Applicant has much more than the required eight years’ experience in sports. Even if the first applicant’s contention is correct, which as stated I do not believe it is, it is clear from the second Respondent’s testimony as well as from his CV that he has experience in school sports dating from 2003. He had spent more than eight years co-ordinating sports at the two primary schools he worked at. I am therefore satisfied that the second respondent met this requirement.
Failure by the first respondent to apply affirmative action correctly.
43. The first applicant submits that had affirmative action been correctly applied, she should have been appointed as a woman. She basis this on two factors, namely:
a. The figures that she says were given to her by HR which indicate that there are more males than females in DCES posts.
b. Her view that equity means that there must be a 50/50 split between males and females on all levels.
44. Mr Motaung, who is also the equity manager, testified as to how equity targets are determined. He further confirmed that when targets are developed, the provincial EAP is considered and applied to each level of the employer. The first applicant, in my view, mistakenly seeks to rely on figures for a specific position/post, such as that of DCES. What she fails to understand is that such a post is not viewed in isolation, but it is rather viewed together with other posts on the said level (in this case junior management). The figures she puts forward, even if correct, are therefore incomplete for purposes of equity. Her view that equity, as it relates to affirmative action, always means a 50/50 split between males and females is also incorrect. Mr Motaung confirmed that provincial EAP figures are used as a basis. He testified further that although there was no approved plan at the time, the statistics indicated that African males were the most in demand and under-represented at the first respondent’s junior management level. This is confirmed by page 110 of R1. As stated above, the figures that the first applicant seeks to dispute this with are not complete as they do not include all positions on junior management level. Despite the fact that the first respondent’s plan was awaiting approval, they would still have had both the old plan as well as statistics to act as a guide in terms of determining an order of preference as it relates to AA. On the evidence, I am satisfied that affirmative action/equity was applied correctly.
The first applicant was the best candidate.
45. The first applicant submits that she was the best candidate. Her claim in the regard is based on the fact that she believes that she has the required three year teaching qualification in sport as she had physical education as a module. She has been in school enrichment, which includes school sports, at a lower level, since 2008, and she is the only one with experience in all the advertised duties.
46. The second respondent holds both a University Diploma in Education as well as an Advanced Diploma in Education, which included a number of sports related modules. The evidence indicates that he has extensive experience in sport in general as well as school sport. To my mind, the fact that the first applicant has experience in the required functions at a lower level does not automatically mean that she is the best candidate. If this was the case, it would mean that as soon as there is an application from a person either working at a lower level, or for that matter acting in the position, anyone not doing so need not apply. This, to my mind, cannot be the case. The first applicant lays emphasis on her qualifications and experience relating to school sport. While I do not believe that the second respondent has inferior qualifications or experience, even if I am wrong in this, she seems to lose sight of the fact that this is not all that gets looked at when making appointments. If it was, there would be no need for an interview process. They could simply compare the qualifications and experience listed and appoint the individual with the best qualification and most experience. I believe that an interview deals with a lot more than this. There is for example, inter alia, certain skills and competencies that are looked for by an employer, when making an appointment. It is not disputed that after the interview process, the first applicant was ranked 3, whilst the second respondent was ranked 2 (a higher position). There is no evidence, other than the claim relating to qualifications and experience, that this ranking was skewed based on the interview process itself. I do not believe that the first applicant has shown that she was the best candidate for the position
47. In light of the above, I believe that the first applicant has failed to show that the first respondent has committed an unfair labour practice against her by not appointing her to the position of DCES.
48. The first applicant, Ms Moruthane, was not subjected to any unfair labour practice by the first respondent, the Department of Education – North West.
49. The first applicant, Ms Moruthane, is not entitled to any relief.
Name: Clint Enslin