ELRC534-21WC
Text
ELRC534-21WC
Award Date:
24 May 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case Number ELRC534-21WC
In the matter between:
FRANCEN SEPTEMBER
Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was held via Zoom video conferencing on 20 January 2022, 10 February 2022 and 5 May 2022. The applicant was represented by Mr. R. Sampson of the South African Democratic Teachers Union (SADTU). The respondent was represented by Ms. S. Flandorp its employee relations officer.
THE ISSUE IN DISPUTE
2. Whether the respondent perpetrate an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended(LRA) when they did not appoint the applicant into the post.
THE BACKGROUND TO THE DISPUTE
3. This matter pertains to post number 968 vacancy list 3 of 2020 for a departmental head post at post level 2 at Langeberg Secondary School which the applicant applied for.
4. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
5. The contention of the applicant is that he had been nominated as the best suited candidate for the post by the school governing body at Langeberg Secondary School in Robertson and therefore the respondent must appoint him into that post.
6. The respondent contends that the applicant does not meet the requirements for the post as advertised and that the Head of Department accordingly correctly exercised its powers not to appoint the applicant into the post and ordered that the post be re-advertised.
SUMMARY OF EVIDENCE AND ARGUMENT
7. It was common cause that the applicant is a qualified teacher. It was however placed in dispute that the applicant is a teacher qualified for this specific post.
8. It was common cause that the advertisement for this post refers to experience in teaching subjects in the FET phase and that the evaluation by the Department of Education: Western Cape states that the applicant is not qualified to teach in that specific phase.
9. The applicant placed into dispute that he is not eligible to teach in the FET phase.
10. The nomination letter of the applicant of 2006 clearly states he was appointed into teaching standards 8/10 which today is grades 10/12 which FET band is in dispute.
11. In 2015 it was gazetted that only suitably qualified educators can now teach in certain position. This was a revised policy on minimum regulations for teacher education qualifications.
12. The applicant testified under oath for himself. Prudence Maria Michaelson responsible for recruitment and selection inter alia testified under oath for the respondent.
The evidence for the applicant
13. The applicant has been teaching for 20 years of which 16 were at Langeberg Secondary school in Robertson.
14. He is involved in extra curricula activities at the school and curricula activities
15. During the pandemic the applicant taught Afrikaans at grade 10 and 11 level which are in the FET phase. This was the only year he taught in the FET phase.
16. Otherwise, he taught in grade 9 in which the responsibilities of the departmental head do not differ significantly from those in the FET phase.
17. He has been doing this for 10 years and so is very equipped to do so in the FET phase.
18. The applicant considers himself qualified to fill the post as he is a qualified teacher as stipulated in the advertisement
19. His certificate evaluation stipulates that he is qualified to teach learners at intermediate and senior phase and the FET phase is not mentioned therein.
20. The first time he taught in the FET phase was October 2020 while the closing date for the advertisement was September 2020, leaving him with only 3 months of experience teaching in the FET phase.
21. The applicant agreed that when the selection committee looks at an application for a post the requirements stipulated in the advertisement must be in the application. In the recruitment process his CV would speak for him. His CV does not show that he had FET experience or he taught FET subjects.
22. According to his CV he therefore did not meet the first 2 requirements but he did the work and has the experience.
23. His CV did not mention his teaching or experience in the FET phase and he testified in his evidence-in-chief that most of his experience was in grade 9.
24. He had not met the requirements as per his CV and therefore he could not gainsay the decision of the respondent to re-advertise the post. That was the respondent’s decision to take.
The evidence for the respondent
25. Ms Michaelson is responsible for recruitment and selection at the respondent.
26. The advertisement was placed by the school principal and its wording is in accordance with the needs of the school.
27. While the applicant is a qualified teacher he does not qualify for this post as it requires teaching in the FET phase.
28. His CV reflects his teaching in grade 9 but nothing in respect of the FET phase grades 10 to 12. He therefore did not meet the requirements of the post.
29. The applicant was therefore not appointed although he was the first recommended candidate of the SGB.
30. When the second candidate, who did meet the requirements according to his CV did not accept the position due to finding another post, the third candidate was considered. He had however passed on.
31. The school principal was therefore notified of the applicant’s none appointment and was instructed to re-advertise the post.
32. The applicant had written FET on his CV without stating grades 10, 11 or 12, which led to the SGB giving him the benefit of the doubt and therefore not eliminating him at the shortlisting stage but instead including him.
33. The importance of meeting the criteria for the post was to have the correct educator in the correct phase and for classes to have quality education.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
34. It is clear from the evidence presented at his arbitration that both parties agree that the educator in the post must be suitably qualified.
35. The evidence shows that the applicant has a certificate which enables him to teach in the senior primary phase.
36. There is before me no document to illustrate that the applicant has a qualification that enables him to teach in the FET phase.
37. From the advertisement of the post it is clear that a qualification that enables the applicant to teach in the FET phase is a requirement for the post.
38. The only evidence before me of the applicant’s having experience of teaching in the FET phase is a period of three months prior to the closing date for the applications for the post.
39. I am satisfied that the applicant does not have this necessary requirement based on the discretion of the HOD exercised to this effect. There is also no evidence before me to suggest that the HOD had not exercised its discretion judicially.
40. The evidence before me shows that the SGB had in fact nominated the applicant as its candidate of first choice of the three candidates.
41. In such circumstances the HOD is obliged to appoint such nominated candidate unless a requirement in terms of the post is not met (Section 6(3) (b)(ii) of the Employment of Educators Act 76 of 1998 as amended)
42. It is clear furthermore that the post is in respect of grades 10 to 12, the FET phase.
43. For an incumbent to occupy such a post it is clear that a qualification enabling such incumbent to do so is required. In terms of the Department of Education: Western Cape’s Revised Policy on the Minimum Requirements for the Teacher Education Qualifications – Government Gazette 38487 of 19 February 2015 a combined Senior Phase and Further Education and Training Teaching Programme is appropriate for teaching in secondary schools.
44. Although the applicant has argued that the fact that he is a qualified teacher enables him to do so, this argument unfortunately has to be rejected for the aforesaid reasons. The applicant has not demonstrated he has a qualification that specifically enables him to teach in the FET phase.
45. The evidence shows further that the SGB had erroneously concluded that the applicant has a qualification to teach in the FET phase.
46. The testimony of Ms Michaelson was that the SGB had given the applicant the benefit of the doubt as he had stated in his CV merely that he had taught in the FET phase, is plausible. This mistake had clearly enabled the applicant to progress to the shortlisting and interview stages.
47. It is clear that the HOD has legally exercised its powers in terms of section 6 of the Employment of Educators Act and accordingly the applicant cannot be appointed into the post for lack of suitable qualification and experience in the FET phase.
48. It is to be noted that not only had the HOD rejected the first choice recommendation of the SGB with reasons they only then gave consideration to both the second and third choices of the SGB.
49. The HOD cannot thereafter, when the second and third choices of the SGB were unable to conclude the process, then revert to the applicant as a candidate which it had already disqualified for not having met the requirements.
50. It would be absurd to appoint a candidate in circumstances where such candidate did not meet the requirements for the post.
51. This is not to say that the applicant will for all time not have the necessary qualifications for such a position.
52. The claim of the applicant that the respondent has perpetrated an unfair labour practice by not appointing him into the post must fail.
AWARD
53. The conduct of the respondent in not appointing the applicant into the post does not constitute an unfair labour practice relating to promotion as provided for in Section186 (2)(a) of the Labour Relations Act 66 of 1995 as amended.
54. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.
24 MAY 2022
Case Number ELRC534-21WC
In the matter between:
FRANCEN SEPTEMBER
Applicant
and
DEPARTMENT OF EDUCATION – WESTERN CAPE
Respondent
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The arbitration was held via Zoom video conferencing on 20 January 2022, 10 February 2022 and 5 May 2022. The applicant was represented by Mr. R. Sampson of the South African Democratic Teachers Union (SADTU). The respondent was represented by Ms. S. Flandorp its employee relations officer.
THE ISSUE IN DISPUTE
2. Whether the respondent perpetrate an unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended(LRA) when they did not appoint the applicant into the post.
THE BACKGROUND TO THE DISPUTE
3. This matter pertains to post number 968 vacancy list 3 of 2020 for a departmental head post at post level 2 at Langeberg Secondary School which the applicant applied for.
4. In terms of Section 138(7) of the Labour Relations Act 66 of 1995 as amended, I am required to provide brief reasons with my award. Accordingly, I shall only refer to the evidence I consider relevant to determining the dispute between the parties.
5. The contention of the applicant is that he had been nominated as the best suited candidate for the post by the school governing body at Langeberg Secondary School in Robertson and therefore the respondent must appoint him into that post.
6. The respondent contends that the applicant does not meet the requirements for the post as advertised and that the Head of Department accordingly correctly exercised its powers not to appoint the applicant into the post and ordered that the post be re-advertised.
SUMMARY OF EVIDENCE AND ARGUMENT
7. It was common cause that the applicant is a qualified teacher. It was however placed in dispute that the applicant is a teacher qualified for this specific post.
8. It was common cause that the advertisement for this post refers to experience in teaching subjects in the FET phase and that the evaluation by the Department of Education: Western Cape states that the applicant is not qualified to teach in that specific phase.
9. The applicant placed into dispute that he is not eligible to teach in the FET phase.
10. The nomination letter of the applicant of 2006 clearly states he was appointed into teaching standards 8/10 which today is grades 10/12 which FET band is in dispute.
11. In 2015 it was gazetted that only suitably qualified educators can now teach in certain position. This was a revised policy on minimum regulations for teacher education qualifications.
12. The applicant testified under oath for himself. Prudence Maria Michaelson responsible for recruitment and selection inter alia testified under oath for the respondent.
The evidence for the applicant
13. The applicant has been teaching for 20 years of which 16 were at Langeberg Secondary school in Robertson.
14. He is involved in extra curricula activities at the school and curricula activities
15. During the pandemic the applicant taught Afrikaans at grade 10 and 11 level which are in the FET phase. This was the only year he taught in the FET phase.
16. Otherwise, he taught in grade 9 in which the responsibilities of the departmental head do not differ significantly from those in the FET phase.
17. He has been doing this for 10 years and so is very equipped to do so in the FET phase.
18. The applicant considers himself qualified to fill the post as he is a qualified teacher as stipulated in the advertisement
19. His certificate evaluation stipulates that he is qualified to teach learners at intermediate and senior phase and the FET phase is not mentioned therein.
20. The first time he taught in the FET phase was October 2020 while the closing date for the advertisement was September 2020, leaving him with only 3 months of experience teaching in the FET phase.
21. The applicant agreed that when the selection committee looks at an application for a post the requirements stipulated in the advertisement must be in the application. In the recruitment process his CV would speak for him. His CV does not show that he had FET experience or he taught FET subjects.
22. According to his CV he therefore did not meet the first 2 requirements but he did the work and has the experience.
23. His CV did not mention his teaching or experience in the FET phase and he testified in his evidence-in-chief that most of his experience was in grade 9.
24. He had not met the requirements as per his CV and therefore he could not gainsay the decision of the respondent to re-advertise the post. That was the respondent’s decision to take.
The evidence for the respondent
25. Ms Michaelson is responsible for recruitment and selection at the respondent.
26. The advertisement was placed by the school principal and its wording is in accordance with the needs of the school.
27. While the applicant is a qualified teacher he does not qualify for this post as it requires teaching in the FET phase.
28. His CV reflects his teaching in grade 9 but nothing in respect of the FET phase grades 10 to 12. He therefore did not meet the requirements of the post.
29. The applicant was therefore not appointed although he was the first recommended candidate of the SGB.
30. When the second candidate, who did meet the requirements according to his CV did not accept the position due to finding another post, the third candidate was considered. He had however passed on.
31. The school principal was therefore notified of the applicant’s none appointment and was instructed to re-advertise the post.
32. The applicant had written FET on his CV without stating grades 10, 11 or 12, which led to the SGB giving him the benefit of the doubt and therefore not eliminating him at the shortlisting stage but instead including him.
33. The importance of meeting the criteria for the post was to have the correct educator in the correct phase and for classes to have quality education.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
34. It is clear from the evidence presented at his arbitration that both parties agree that the educator in the post must be suitably qualified.
35. The evidence shows that the applicant has a certificate which enables him to teach in the senior primary phase.
36. There is before me no document to illustrate that the applicant has a qualification that enables him to teach in the FET phase.
37. From the advertisement of the post it is clear that a qualification that enables the applicant to teach in the FET phase is a requirement for the post.
38. The only evidence before me of the applicant’s having experience of teaching in the FET phase is a period of three months prior to the closing date for the applications for the post.
39. I am satisfied that the applicant does not have this necessary requirement based on the discretion of the HOD exercised to this effect. There is also no evidence before me to suggest that the HOD had not exercised its discretion judicially.
40. The evidence before me shows that the SGB had in fact nominated the applicant as its candidate of first choice of the three candidates.
41. In such circumstances the HOD is obliged to appoint such nominated candidate unless a requirement in terms of the post is not met (Section 6(3) (b)(ii) of the Employment of Educators Act 76 of 1998 as amended)
42. It is clear furthermore that the post is in respect of grades 10 to 12, the FET phase.
43. For an incumbent to occupy such a post it is clear that a qualification enabling such incumbent to do so is required. In terms of the Department of Education: Western Cape’s Revised Policy on the Minimum Requirements for the Teacher Education Qualifications – Government Gazette 38487 of 19 February 2015 a combined Senior Phase and Further Education and Training Teaching Programme is appropriate for teaching in secondary schools.
44. Although the applicant has argued that the fact that he is a qualified teacher enables him to do so, this argument unfortunately has to be rejected for the aforesaid reasons. The applicant has not demonstrated he has a qualification that specifically enables him to teach in the FET phase.
45. The evidence shows further that the SGB had erroneously concluded that the applicant has a qualification to teach in the FET phase.
46. The testimony of Ms Michaelson was that the SGB had given the applicant the benefit of the doubt as he had stated in his CV merely that he had taught in the FET phase, is plausible. This mistake had clearly enabled the applicant to progress to the shortlisting and interview stages.
47. It is clear that the HOD has legally exercised its powers in terms of section 6 of the Employment of Educators Act and accordingly the applicant cannot be appointed into the post for lack of suitable qualification and experience in the FET phase.
48. It is to be noted that not only had the HOD rejected the first choice recommendation of the SGB with reasons they only then gave consideration to both the second and third choices of the SGB.
49. The HOD cannot thereafter, when the second and third choices of the SGB were unable to conclude the process, then revert to the applicant as a candidate which it had already disqualified for not having met the requirements.
50. It would be absurd to appoint a candidate in circumstances where such candidate did not meet the requirements for the post.
51. This is not to say that the applicant will for all time not have the necessary qualifications for such a position.
52. The claim of the applicant that the respondent has perpetrated an unfair labour practice by not appointing him into the post must fail.
AWARD
53. The conduct of the respondent in not appointing the applicant into the post does not constitute an unfair labour practice relating to promotion as provided for in Section186 (2)(a) of the Labour Relations Act 66 of 1995 as amended.
54. This application for relief in terms of the provisions of the Labour Relations Act 66 of 1995 as amended is dismissed.
24 MAY 2022