ELRC567 – 20/21GP
Award  Date:
  08  June 2022
Case Number: ELRC587-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 08 June 2022

In the matter between

E. B. Jacobs


1st Department of Education – Eastern Cape, 2nd Mr A. Swart

Union/Applicant’s representative:

Mr Rodney Mtywaru

E-mail: rodmtywaru@gmail.com

Respondent’s representative:
Respondent’s address: Ms A Slabbert

Telephone: 071 894 8607
E-mail: Ansie68lro@gmail.com

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held Virtually on 14 February 2022,face to face on 07 April 2022, and virtual on 30 May 2022.

2 The applicant, Me E. B. Jacobs, was represented by Mr. R Mtywaru, an official from the South African Democratic Teachers Union (SADTU), the 1st respondent, the Education Department - Eastern Cape, was represented by Mrs Slabbert, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Mr Swart, represented himself during the proceedings.

3 The hearing was held in English and Afrikaans and was digitally recorded.

4 Parties concluded a pre-arbitration minute which was signed by both parties and submitted.

5 Parties further agree to file arguments on an answering and reply to basis on the following dates, 14 April 2022, the Applicant to file arguments, 21 April 2022, the Respondent to file an answer, and on 25 April 2022, the Applicant to file a reply. All parties filed arguments, save that they fail to serve same on the other party to answer and reply thereto. On 30 May 2022, parties were given an opportunity to submit oral arguments dealing with issues raised in argument, parties did so.

Issue to be decided

6. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not shortlisting the Applicant for the post of Principal at Parkside Primary School.

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining promotion to the Education Labour Relations Council after he applied for the post no. 21, Principal Post at Parkside Primary School, volume1 of 2021, and was not shortlisted for an interview.

8. The Applicant is employed as a Deputy Principal at Galven Park Primary School since 2019 and commenced employment at the Respondent during 1995.

9. The Applicant sought compensation.

Survey of submissions

10. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.

Applicant’s evidence

11. The Applicant testified that he has been employed by the 1st Respondent for about 27 years, he started his career as a Highschool teacher from 1995 and during 2006, he applied for a Primary School post in East London, and was successful, thereafter he was transferred during 2007 to Galvin Primary School as a level 1 educator.

12. The Applicant further testified that he received two promotions over the time to the extent that he is now Deputy Principal. He saw the advertisement for the post of Principal, he noticed that he comply with all the requirements for the post as advertised, and applied for the post. The Applicant testified that he could not understand why he was not shortlisted and should have been shortlisted due to his years of experience.

13. The Applicant also testified that he will not be able to be promoted to the post of Education Development Officer (EDO) if he was not appointed as a Principal. He wish to be compensated as he believe he was done in by not being shortlisted and does not wish for the successful candidates post to be set aside.

14. Under cross-examination the Applicant confirmed that he holds a Secondary School qualification.

15. Mr Groenewald testified that he is employed as a Principal at a Primary School and was an observer on behalf of SADTU during the recruitment process for the post of Principal in question. The Applicant met the minimum requirements as he was sifted in.

16. Mr Groenewald further testified that he observed the short-listing criteria established and agree with it. The decision by the shortlisting panel was to look at Primary School qualifications specifically.

17. The shortlisting criteria formed part of the secretary minutes and indicate what was agreed upon. The panel considered the curriculum needs of the school and the ability to teach at grade R level. Mr Groenewald testified that the Department of Education focussed on qualification for some time as he observed a number of recruitment processes, and the Applicant was excluded based on his qualification.

18. Mr Groenewald also testified that they accepted the shortlisting criteria as was determined by the panel, but as a union, they disagree with the exclusion based on qualification but did not lodge a complaint. The Department of Education has the right to impose a certain criterion on the panel and they need to appoint in terms of curriculum needs, Hight School qualification to Hight School, and Primary School qualification to Primary School.

19. Mr Loid testified that he is employed as a Deputy Principal who applied for the post in question but was unsuccessful. Mr Loid further testified that a teacher’s qualification is exactly that, it does not differentiate between Primary School and High School.

Respondent’s evidence

20. Mr Smith testified that he is the School Governing Body Chairperson for Parkside Primary School for 8 years and the shortlisting criteria was agreed to the panel and the reason they included a Primary School qualification was due to the principal that would also need to teach.

21. Under cross-examination, Mr Smith confirmed that page 19 of the bundle is the minutes of the secretary and includes the comments made by the panel.

22. Ms Rainier testified that she is employed as a principal practitioner for 48 years by the 1st Respondent and profile Principal posts for recruitment processes. Page 2 of the bundle reflects the Applicants qualification as a High School qualification and the post was for a Primary School. The qualification for the successful candidate as per page 29 of the bundle shows a Senior primary Diploma.

23. Ms Rainier further testified that one cannot appoint an educator with a High School qualification at a Primary School.

24. Under cross-examination, Ms Rainiers confirms that the Applicant met the requirements in terms of the Bulletin and was sifted. There is no specific qualification required to become a Principal and one must rely on the PAM.


25. Section 185 (b) of the LRA provides that every employee has the right not to be subjected to unfair labour practice.

26. 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”.

27. It is common cause that the Applicant challenge his exclusion from being shortlisted by the SGB for the post of Principal at Parkside Primary School. Evidence was led that there is no specific required qualification needed to become a Principal and that Applicant met the minimum requirements of the post. The only regulation that guides the process is the Personnel Administrative Measures (PAM).

28. The question to answer is, was the decision taken by the SGB to exclude candidate for the post with a High School qualification fair.

29. Turning to the SGB’s powers to set the shortlisting criteria. The Respondent correctly referred to PAM as the relevant guide in this instance which states as follows:

1.1 This PAM is applicable to educators at schools, technical colleges, colleges of education and education control and auxiliary services that concern themselves with all those activities aimed at educating and teaching pupils/students, in respect of both formal and non-formal education.

1.2 As regards the matters that are regulated in this PAM, only those measures contained herein shall apply, and there may, in respect of the matters regulated herein, be no deviation from the prescribed measures: Provided that should there be cases not covered by the measures contained herein or should there be any doubt as to the application of the provisions in individual cases, or should there be cases that could justify a deviation from policy, particulars thereof shall be submitted to the Department of Education with a view to a decision regarding such application or possible deviation by the Minister of Education, or the possible amendment or supplementing of the measures by the Minister of Education, with the concurrence of the Minister of State Expenditure in the event of an amendment or supplementation having a financial implication, after negotiation and agreement in terms of the Labour Relations Act, 1995.

3.2 Sifting
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.
(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.
(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.
(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.

3.3 Shortlisting and interviews

(a) Interview Committees shall be established at educational institution where there are advertised vacancies.
(b) The Interview Committee shall comprise:
(i) In the case of public schools: • one departmental representative (who may be the school principal), as an observer and resource person;
• the Principal of the school (if he/she is not the department’s representative), except in the case where she/he is the applicant;
• members of the school governing body, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(ii) In the case of colleges: • one departmental representative, as an observer and resource person; • the head of the institution, except in the case where s/he is an applicant;
• members of the college council, excluding educator members who are applicants to the advertised post/s; and
• one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of shortlisting, interviews and the drawing up of a preference list.
(c) Each Interview Committee shall appoint from amongst its members a chairperson and a secretary.
(d) All applications that meet the minimum requirements and provisions of the advertisement shall be handed over to the school governing body responsible for that specific public school.
(e) The school governing body is responsible for the convening of the Interview Committee and they must ensure that all relevant persons/organisations are informed at least 5 working days prior to the date, time and venue of the shortlisting, interviews and the drawing up of the preference list. Where the Principal is an applicant, a departmental official may assist the school governing body.
(f) The Interview Committee may conduct shortlisting subject to the following guidelines:
(i) The criteria used must be fair, non-discriminatory and in keeping with the Constitution of the country.
(ii) The curricular needs of the school.
(iii) The obligations of the employer towards serving educators.
(iv) The list of shortlisted candidates for interview purposes should not exceed five per post.
(g) The interviews shall be conducted according to agreed upon guidelines. These guidelines are to be jointly agreed upon by the parties to the provincial chamber.
(h) All interviewees must receive similar treatment during the interviews.
(i) At the conclusion of the interviews the interviewing committee shall rank the candidates in order of preference, together with a brief motivation, and submit this to the school governing body for their recommendation to the relevant employing department.
(j) The governing body must submit their recommendation to the provincial education department in their order of preference.
(k) In the case of colleges, the interviewing committee shall submit its ranked preference list to the college council for their recommendation to the relevant employing department.”

30. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, he was short listed by the employing department who forward his application to the interview committee.

31. The minutes of the meeting conducted by the interview committee on pages 6 and 7 of the bundle, indicate that the interview committee sets out the shortlisting criteria to be applied prior the opening of the names provided by the employing department as follows:
“The following Short-Listing Criteria has been decided upon by the Panel:
Round One:
- English must be established.
- Only Primary School Education Teaching qualifications.
- You could have taught at a high school but the applicant must have taught at a primary school in the last 5 years.
- The applicant must be involved in any extra-curricular activities.
- Under the educator employment profile form number 20: Generic Skills-all 8 skills must be established.
- Resigned candidates must be put aside. Only if not enough candidates, then teh panel can look at the resigned candidates.
- Section 29 further refers to educators criminally charged and found guilty of misconduct. Panel decided that as each case arose it will be put to discussion by the panel and unanimous decision taken. This was accepted by all.”

32. It is fact that the Applicant was excluded due to his qualification as a High School educator. The Applicants case is also not that he challenge the shortlisting process, but merely that his exclusion based on his qualification was unfair. The interview committee sets the standard for shortlisting prior the opening the envelope containing the information for all the applicants, they did not deviate from the minimum requirements as per the advert, they added additional criteria as they should have in terms of the PAM.

33. It cannot be argued that such criteria is discriminatory, capricious, unlawful and unfair, all candidates were treated equally using the same criteria for shortlisting. For it to be discriminatory, the grounds relied upon must be arbitrary and impact the human dignity of the Applicant, it must be a characteristic of the Applicant that cannot easily be changed, like for instance one’s gender, age and so forth. A qualification does not fall within a category of an arbitrary ground as one can simply apply to study the necessary qualification that is required for the post.

34. There is a direct nexus between the post of the Primary School Principal the Applicant applied for and a Primary School qualification. It cannot be said the same methods and qualification applies for High School and Primary School education. Therefore, the criteria set cannot be seen as unlawful, nor unfair, and the Applicants claim must be dismissed.

35. PAM further guides the committee that no more than 5 candidates per post should be shortlisted. To do so, the committee must set its own criteria to select candidates for short listing. To be able to achieve this, additional criteria must be set by the panel. It can be expected for the Applicant to feel disappointed that he was not shortlisted, but a disappointment and unhappiness about the criteria does not mean it was unfair.

36. The Applicant further in argument raised the following with regards to bundle B, the confidential information:
La Reserve P did not submit any academic records as stipulated by the bulletin, Pearce, J submitted false information as he did not act for 12 months. He further did not submit any academic records for a Primary School Qualification. Cairncross did not submit any academic records. Boggenpoel R, no academic records and Cunningham L holds a High School Qualification and was shortlisted, he has only 3 to 4 years’ experience at a Primary School. He was ranked second and was appointable.

37. The Applicant argued that there was no consistency in the shortlisting process and thus unfair. I must agree with the Applicant that the shortlisting was inconsistent with the requirements and the evidence presented at the proceedings.

38. It was submitted by the Respondent in oral argument that the Applicants submissions with regards to the shortlisted candidates were correct and true. On that basis it must be accepted as fact.

39. What is important to note is that the Applicant does not wish for the appointment to be set aside, but rather to be compensated. Compensation under such circumstance would mean, solatium for the Respondents wrongdoing. It is further important to note that the successful candidate, Mr E Swart, does hold a Primary School Qualification.

40. To determine whether the inconsistent treatment of the shortlisting criteria constitutes and unfair labour practice, it must be determined whether the Applicant was wrongfully excluded from competing for the post and if so, the prejudice he suffered.

41. It is common cause that the SGB recommends their preferred three candidates to the Education Department for consideration and appointment. Mr Cunningham was the second candidate that was recommended but were not appointed. One can argue and asked the question that, if the Applicant was shortlisted, would he have been appointed. The Applicants case is simply that he should at least be shortlisted. If he was appointed, he would not have referred a dispute as he would have been happy with the outcome.

42. What transpired in this instance is that shortlisting criteria was introduced, and the likes of Mr Cunningham was wrongfully included with the other shortlisting candidates.

43. The Applicant should not compare himself with candidates that were wrongfully shortlisted, but rather with the successful candidate in order to make out a case. The Applicant was correctly excluded from being shortlisted based on his qualifications. His comparators in terms of consistency were incorrectly shortlisted, but not appointed. Had the Education Department appoint any of the incorrectly shortlisted candidates, the Applicant would have been entitled to relief. On that basis it cannot be said that the Applicant was prejudiced by being excluded and that the Respondent committed an unfair labour practice in doing so.

44. In light of the above, I find it appropriate to make the following award.


45. The Applicant, Mr E Jacobs, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

46. The Applicant is not entitled to any relief.


Commissioner: Henk Jacobs

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