PSES179-20/21NW
Text
PSES179-20/21NW
Award Date:
25 April 2022
Commissioner: D Smith
Case No.: PSES179-20/21NW Date of Award: 25 April 2022
In the ARBITRATION between:
SUZAN DITEHO
(Union / Applicant)
and
FIRST RESPONDENT: DEPARTMENT OF EDUCATION NORTH WEST
SECOND RESPONDENT: DONALD MASIU
(Respondent)
Applicant’s representative: Mr. B T Tshilo
Respondent’s representative: Ms. Boity Phuswane
Mr. Connie Cindy
Tel: 0183884108
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard using video conferencing on 22 February 2022.
2. The Applicant, Ms. Suzan Diteho (Diteho), was represented by Ms. Connie Cindy. The First Respondent was represented Ms. Boity Phuswane (Phuswane), its SES: Disputes. The Second Respondent, Mr. Donald Masiu (Masiu), was represented by Mr. Connie Cindy.
3. The process was digitally recorded, and I took handwritten notes.
4. Diteho submitted a bundle of documents marked A.
5. The parties agreed to submit closing argument as follows:
1 March 2022 Applicant
6 March 2022 Respondent
9 March 2022 Applicant
ISSUE TO BE DECIDED:
6. Whether the Respondent committed unfair conduct in not appointing Diteho in the position of principal.
7. If I find in the positive, I must decide upon an appropriate remedy.
BACKGROUND:
8. The post of principal was advertised. Diteho applied and was shortlisted. She scored the highest and was recommended by the School Governing Body. Masiu was, however, appointed.
9. Tshilo argued that the process had been procedurally flawed as:
9.1. The interview panel was not properly constituted;
9.2. The chairperson was biased; and
9.3. The position had been advertised as affirmative action.
9.4 The Parties compiled and signed pre arbitration minutes and agreed as follows:
Facts that are Common Cause
9.3.1. Diteho is an employee of the First Respondent, appointed as a Deputy Principal PL3.
9.3.2. She is stationed at Tshenolo Primary School, which is in the Lekwa-Teemane Circuit, in the Dr Ruth Segomotsi Mompati district.
9.3.3. Her basic salary is R37286, 25 per month.
9.3.4. The Respondent advertised the principal’s (PL 4) of Tshenolo Primary School in Circular 58 of 2020, with post number DRSM2020/11/796.
9.3.5. The post is graded at P4
9.3.6. Diteho had been acting in the pos at the time of its advertisement.
9.3.7. Diteho applied, was shortlisted and interviewed for the post.
9.3.8. The Respondent appointed Masiu to the post.
Facts in dispute
9.3.9. The recruitment and selection panel were properly constituted.
9.3.10. The chairperson of the interviewing panel was not a level higher than the post advertised.
9.3.11. The chairperson’s scoring was biased against Diteho.
9.3.12. The Respondent deviated from the SGB’s recommendation.
9.3.13. The Respondent did not consider its affirmative action targets when it appointed Masiu.
9.3.14. Diteho was the best candidate of all the candidates that applied for the post.
Issues that the Panelist is required to decide.
9.3.15. Whether or not the Respondent committed an unfair labour practice when she failed to promote the Applicant to the Principal post no. DRSM2020/11/796
REMEDY
10. Diteho sought to be appointed in the role of principal: DRSM2020/11/796
SURVEY OF EVIDENCE AND ARGUMENT:
11. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
12. Most of the evidence was common cause.
APPLICANT’S VERSION
13. Ms. Constance Keletsemile Mathupi, educator, testified under oath that:
13.1. She had been the secretary of the former SGB committee and the interview panel.
13.2. The SGB chose two panel members. The district manager chose the chairperson. As the position was a Post Level 4 the circuit manager should have chaired it
13.3. A90 was an extract from PAM.
13.4. She referred to A90 B5.5.
13.5. She referred to A89 2.3 the Circular 10 of 2013. It stated that the chairperson of the panel must be at least a level higher than the post advertised.
14. In cross-examination she testified that:
14.1. A94 Circular 58 of 2020 contained no reference to the chairperson having to be a level higher.
14.2. A90-93 was the Ministerial determination that dealt with the advertising of posts.
15. Tshilo argued that:
15.1. The Respondent committed unfairness on two procedural grounds, namely that the Interview Committee was not constituted properly, and that the Responded did not consider affirmative action targets when she appointed the incumbent, who is a male.
15.2. Diteho sought that the appointment of the Second Respondent be set aside and that the process be repeated, under a new panel, from the shortlisting stage.
15.3. During arbitration the issues in dispute were further narrowed down as follows:
15.3.1. The shortlisting and interview committee was not constituted properly.
15.3.2. The Respondent did not consider affirmative action targets when she appointed the incumbent, a male to the post.
Constitution of the Interview Committee
15.4. Diteho’ s witness, Mothupi, lead evidence that she was the secretary of the former SGB as well as the secretary for the interview committee. She further testified that the SGB selected two members of the Interview Committee while the Circuit Manager, Mr. Bafanah, selected the remaining member, namely the chairperson of the committee. The Respondent did not challenge this.
15.5. Clause B.5.4.5 of the PAM provides that the SGB is responsible for the convening of the interview committee. Departmental Circular 58 of 2020 provides at 6.2 that the SGB must establish the shortlisting committee, and at 7.1, the SGB must establish the interview committee.
15.6. In terms of Circular 58 of 2020, where it is not possible for the governing body to carry out the aforementioned tasks, a District official should assist it. The SGB was capable of carrying out their task of establishing the interview committee. The involvement of the Circuit Manager thus amounted to over-reach, leading to procedural unfairness.
15.7. Mothupi further testified that the chairperson of the interview committee was a school principal and not a circuit manager. This was not a post level higher than the post that was advertised. This was not challenged. The Respondent challenged whether it was a requirement that the chairperson should have been a post level higher than the advertised post. Mothupi relied on Respondent’s Circular 10 of 2013 for its assertion. This is titled “Recruitment and Selection of Employees”. The circular identifies challenges in recruitment and selection processes of the Respondent and provides ways to mitigate these challenges. The circular, at 2.3 provides that the chairperson of an interview committee should be at least one level higher than the post advertised (Annexure 8). It is an undisputed fact that the chairperson of the Interview Committee in question was a school principal, and therefore on Post Level 4, which is the same level as that of the advertised post. This gives rise to further wrong constitution of the Interview Committee and thus procedural unfairness.
15.8. Diteho was prejudiced by being subjected to a process conducted by an improperly constituted interview committee.
Affirmative Action
15.9. The Respondent should have considered affirmative action, specifically Diteho’ s gender when making the appointment. Instead, they appointed Masiu, a male, to the post. The post was advertised in Circular 58 of 2020, which provides at 2.5.1, that the filling of posts must be guided by ‘affirmative action for designated groups, (namely Blacks which include Africans, Coloureds and Indians), women and disabled persons.)
15.10. The PAM, clause B.5.1.1 provides that when filing posts, due regard must be given to equality, equity and other democratic values and principles. The PAM is a ministerial determination made in terms of the Employment of Educators Act (Educators’ Act) and is therefore subordinate legislation. The abovementioned PAM provisions mirror the provisions the Educators’ Act at section 7.1.
15.11. The Respondent published its Annual Report document for the financial year 2018/2019 on its website. It reports that the actual percentage of women in Principalship posts for 2017/18 was 37% and that of 2018/19 was 38%, whereas the planned target for the same period was 50%. This represented a deviation of 12% from the planned target. The Respondent blames this anomaly on lack of adherence to the equity plan.
15.12. The Respondent also published its Annual Performance Plan for the financial year 2019/2020 on its website. In this plan the Respondent captures its actual performance in terms of women in Principalship posts as 39% and the estimated performance for the periods 2018/19, 2019/20, 2020/21 and 2021/22 all at 50%.( Annexure 12, number 44)
15.13. The Respondent thus had a target of 50% for women in principalship posts. This target had not been reached when the disputed post was advertised. Nevertheless, the Respondent proceeded to appoint a male in the post, overlooking the applicant, a female. This despite the provisions of the Respondent’s own advertisement, the PAM, the Educators’ Act, as well as its own affirmative action targets. It follows that the process to fill the post was flawed and gives rise to procedural unfairness. Diteho suffered prejudice because of this unfairness.
The right to fair labour practices
15.14. The Constitution guarantees everyone the right to fair labour practices, which right is further given effect through the provisions of section 186(2) of the LRA and the EEA.
Test of fairness
15.15. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others(2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) the Court held that the overall test on promotion disputes is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer…or whether the employer failed to comply with applicable procedural requirements related to promotions.
An employer’s procedure for promotions
15.16. In George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC), the Court considered procedural unfairness in relation to procedures laid down by an employer before filling promotional posts. The Court held:
It was accepted that an employer may be held to a contractual term or practice to the effect that the employee will be promoted or transferred and/or that a certain procedure will be followed prior to the filling of the post. The presiding officer stated that: ‘it would therefore stand to reason that during the subsistence of the contractual relationship or the wider concept of an employment relationship issues regarding promotion or a lateral transfer to another job with the employer would be considered legitimate subjects of the existing employment relationship. An employer who held out to a person in his or her employ that that person could apply for promotion and that a certain procedure and practice would be followed before filling a vacancy would be held by this court, in the absence of any necessary justification, to that contract of promise’.
15.17. The Respondent had laid down procedures to be followed in filling the disputed promotional post. She had done so through the PAM, Circular 58 of 2020 that advertised the post, as well as Circular 10 of 2013 that guides the selection and recruitment processes.
15.18. The SGB should have established the interview committee and the chairperson of the committee should have been at least one level higher than the post advertised.
15.19. The court held in City of Cape Town v SA Municipal Workers Union, supra, that the test for fairness in promotions requires, amongst others, a consideration of whether the applicable prescribed procedures for filling the post were complied with.
15.20. In terms of George v Liberty Life, supra, laid down by an employer amount to a contract of promise to applicants in their employ. The Respondent was bound to follow these procedures when filling the post. It follows that failure to do so prejudiced Diteho and resulted in procedural unfairness.
16. Tshilo replied:
16.1. The issues in dispute were further narrowed down to:
16.1.1. The interview committee was not constituted properly.
16.1.2. The Respondent did not consider affirmative action targets when they Masiu, a male, to the post.
16.2. Diteho sought that the appointment of Masiu to the post of Principal at Tshenolo Primary School should be set aside and the process be repeated, under a new panel, from the shortlisting stage. She does not seek appointment into the post as she contends to have suffered procedural unfairness during the filling of the post.
16.3. Diteho addressed only the narrowed issues.
16.4. Diteho had factual issues to raise, and indeed, called a witness to raise such issues. The Respondent, on the other hand, did not indicate that the too had factual issues to raise; neither did she call any witness to raise such issues. Phuswane instead stated that she would argue her case on the law.
16.5. Phuswane applied for postponement of proceedings because she was not feeling well and that the issue of witnesses did not arise at that point as well.
16.6. It is incorrect for Phuswane to contend that she was not afforded the opportunity to call witnesses and then to rely on factual evidence, as in paragraphs 6.10, 6.11, 7.1 and 7.2 of her arguments, when parties have agreed that factual issues were dealt with during arbitration and that points of law would be argued on paper.
Affirmative Action
16.7. The Respondent contends at paragraph 6.5 that both Diteho and Mosiu are black and there is therefore no unfair labour practice as a Black person was appointed. Affirmative action strives to bring about equality in terms of gender as well as well as disability. The Respondent should have considered Diteho, s gender as well, more so as the choice to appoint was between two Blacks.
16.8. The Respondent is argued that equity targets must be contained in an equity plan and not a report (paragraph 6.8). These are not just mere reports, but detailed, comprehensive official Annual Reports and Annual Performance Plans, which were published on the Respondent’s website. While the first part of the contention is correct, there is nothing prohibiting such targets to be communicated to the public as dictated by transparency and public accountability. This further promotes access to information. The Respondent would not publish inaccuracies or irrelevant information in such reports. The Respondent expressly committed to the accuracy of the reports.
16.9. The Respondent by posting both reports on its website, is communicating to the province, the country and indeed the world as to the state of its department as well as how it plans to improve performance in same. Reliance on these reports can therefore not be seen to be misleading the arbitration.
16.10. Paragraph 6.9 also avers that the targets on which Diteho relies, provides for a five-year period, which has not yet lapsed and therefore non-achievement of the target cannot be claimed. Further, that the disputed post was advertised with many other principalship posts, which may well enable the Respondent to reach the estimated targets. Diteho agrees that the planned five-year period has not yet lapsed. A reasonable employer would therefore use the available time to reach the targets, and not wait until the completion of the five-year period. Furthermore, a reasonable employer, when presented with an opportunity to work towards achieving its own target, as is the case with the disputed post, would not miss such an opportunity, with the expectation that some other recruitment process may enable it to reach the target.
Over-representation of females on junior management level
16.11. The Respondent, at paragraph 6.10, and 6.11, introduces new factual evidence as was presented by a Mr. Motaung at another arbitration. Assuming this evidence is accepted, which we submit should not be the case, she refers the Commissioner to an extract of an arbitration award annexed to her Heads of Arguments as R2 (paragraphs 34-36) and R3 (paragraph 44). The evidence that Mr. Motaung reportedly gave at such a sitting is noted. The Applicant would dispute the fact that for the period of 2017/2018 to 2020/2021, women in junior management were over-represented.
16.12. The Respondent in its Annual Performance Plan of 2019/20 gives her target for women in principalship posts as 50%. Under the column ‘Justification for Target’, Phuswane writes ‘Equity Plan’. In terms of the same performance indicator (women in Principalship posts) in the Annual Report of 2018/19, the Respondent had already indicated that it had achieved at 39% for the period 2017/18 and 38% for the period 2018/19. Under the heading ‘Comment on deviation’ is written ‘Employment equity targets are not adhered to’). On both occasions, the Respondent refers to her own equity targets. The Respondent had regard to its equity targets when compiling these reports.
16.13. Paragraph 7.2 of the Respondent’s Heads of Argument, where it is argued that the SGB agreed with the circuit manager on the three officials who served as the interview committee. Phuswane argued that the SGB did not complain about the constitution of the committee in their minutes and recommendation letter. This is new factual evidence, which is being belatedly raised. Mothupi testified that she was the secretary of the SGB in question. The Respondent had the opportunity to question her during cross-examination but did not do so. Diteho stands by her contention that the circuit manager selected the third member of the interview committee, without the invitation of the SGB to do so.
Substantive unfairness not alleged
16.14. Diteho does not allege substantive unfairness.
Circulars not being sources of law
16.15. The Respondent argued that circulars are not sources of law in South Africa and Circular 10 of 2013, which provides that the chairperson of the interview committee should be at least a post level higher than the advertised post, is of no effect. Circulars are a tool that the employer uses to communicate to its employees. Diteho relied on Circular 10 of 2013 for her contention relating to the post level of the chairperson of the interview committee precisely because the employer through its customary tool communicated it, namely said circular. This is the same way in which she relied on the advertisement of the post as it was also communicated through a circular, namely Circular 58 of 2020. She thus submits that the Respondent must be held to her word, as far as recruitment proceedings are concerned, as was held in George v Liberty Life Association of Africa Ltd, supra.
An employer’s prerogative to promote or not promote
16.16. The Respondent refers to the employer’s prerogative to promote or not to promote, with reliance on SAPS v SSSBC [2010] 892 BLLR (LC). The court held that in the absence of gross unreasonableness or bad faith or where the decision relating to the promotion is seriously flawed, an arbitrator should not readily interfere with the employer’s exercise of discretion. There was gross unreasonableness in that Diteho was subjected to an improperly constituted interview committee not entirely established by the SGB, where the chairperson thereof was not a post level higher than the advertised post, and that the Respondent further did not consider affirmative action targets as the recruitment procedure required of her. There are enough grounds to interfere with the Respondent’s discretion to promote or not promote.
Substantial compliance
17. On the Respondent’s averment, that substantial compliance with recruitment guidelines is sufficient. An improperly constituted interview committee and not considering affirmative action targets by the Respondent are not just insignificant procedural flaws that can be overlooked. These are key procedures to be followed when filling posts, failing which, substantial compliance cannot be said to have taken place.
RESPONDENT’S VERSION
18. Phuswane submitted that:
18.1. The Applicant lodged an unfair labour practice dispute relating to promotion to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA) which it states as follows:
“Unfair labour practice means any unfair act or omission that arises between the employer and an employee involving-
(a) unfair conduct by the employer relating to promotion … .
18.2. In Mashegoane v University of the North the Labour Court defined promotion as being elevated or appointed in a position that carries greater authority and status than the current position the employee is in. The case in dispute meets this definition.
Arguments on substantive issues
18.3. Diteho argued that First Respondent did not have regard to its affirmative action targets when it appointed the Second Respondent.
18.4. An employee who alleges that he is a victim of an unfair labour practice bears the onus to prove that claim on a balance of probabilities. This is according to Grogan in Dismissal, Discrimination and Unfair labour Practices (2nd ed.). This means that the employee must prove not only the existence of the labour practice, but also that it was unfair. The employer thus is only required to rebut the evidence of the applicant if necessary. Unhappiness or perception of unfairness does not establish the unfair conduct [Du Toit et al Labour Relations Law (5th ed.) 488]. Diteho, therefore, bears the onus to prove that the First Respondent failed to take into consideration affirmative action when making appointment into the disputed principal PL 4 post; which measures could have favored her over the Second Respondent.
18.5. It is common cause that paragraph 2.5.1 of the Departmental Circular 58 of 2020 provides that the filling of these post must further be guided by “Affirmative action for designated groups, (namely Blacks which includes Africans, Colored and Indians), women and disabled persons”. This paragraph is in line with section 15 of the Employment Equity Act 55 of 1998 (EEA). Paragraph 6.4 states clearly the affirmative action designated groups which are categorized as Blacks; which include inter alia Africans. It is common cause that the Second Respondent is Black and thus African, as is Diteho The Second Respondent was ranked the highest after the interviews and Diteho was scored second. The First Respondent was not wrong to have appointed the Second Respondent as he is covered by the affirmative action targets under the category of Blacks as contained in both the EEA read with the Departmental Circular 58 of 2020.
18.6. Diteho argued in paragraphs 20 and 21 that the department published the annual reports which by implication states that the respondent has failed during the periods 2017/ 2018 and 2018/2019 to meet the 50% target of women in principal posts. He further submits that the First Respondent, in the report that “the actual performance in terms of women n principalship posts was at 39% in 2018/2019 and the estimated performance for the periods 2018/2019, 2019/20, 2020/21 and 2021/22 all at 50%.
18.7. Diteho is not addressing the issue of affirmative action as provided for in this Departmental Circular and the EEA. It has been demonstrated in paragraph 6.5 herein above that the there was no unfair labour practice perpetuate against Diteho in respect of affirmative action.
18.8 Equity targets in the workplace must be contained in an Equity Plan and not a report as argued by Diteho. Section 20(1) the EEA provides that “A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in the workplace”. This plan is usually a five-year plan.
18.9 Diteho was misleading the Council by wanting to use a report to address the issue that requires an Equity Plan. That is incorrect. However, his argument is still lacking in that she argues that the report provides for a five-year period to achieve the said percentage. It is an undisputable fact that the five years she is referring to is still not over. To suggest that the estimated target has not been achieved as yet is misleading. The post was advertised with many other principal posts which could also enable the First Respondent to reach the estimated performance.
18.10 On 23 November 2021, Motaung, the Director for Human Resources Management and an Equity Manager appointed in terms of section 24 (1) of the EEA t Respondent testified that he is the Equity Manager for the 1st respondent. The very same issue on affirmative action was raised where the Applicant was a female and contested that affirmative action targets were not met in that the 1st Respondent appointed a Black male instead of her. The post was that of a DECS. His testimony, which was never challenged. Motaung further submitted that Equity targets are determined in terms of the following categories
• Junior Management (SL 9-SL10 and PL3-PL5)
• Middle Management ( DD and CES) and
• Senior management (Director upwards)
18.11 That post fell within this five-year period. The Commissioner found that there was no unfair labour practice against the Applicant in relation to this aspect. This explanation clearly indicates that in determining the targets, focus cannot only be on principals (PL4) but within a category. All principals are at PL 4 and thus fall within the junior management category. The submission by the applicant that the 1st Respondent has a deficit of 12% in fulfilling the 50% target is thus contrary to what equity really is. In his testimony, Motaung submitted that for the period 2017/2018 to 2020/2021, women in Junior Management are over-represented.
18.12 There was no unfair labour practice perpetuated against the Application in relation to affirmative action.
Constitution of the interview committee
18.13 The Respondent were never afforded an opportunity to call their witnesses, save to indicate that the First Respondent’s representative made an application for postponement as she was not feeling well, in fact she had no voice and was thus not in a position to do justice to her case in an event arbitration were to proceed. It was however ruled that only one-piece evidence from the applicant be presented, and the matter be argued on paper.
18.14 Diteho submitted that only two of the interview committee members were selected by the SGB whilst the circuit manager selected the third member. This is incorrect. The SGB agreed in a meeting with the circuit manager that the three officials form part of the interview committee. They were all called by the circuit manager in the presence of the SGB that they were selected by the SGB to be panelists in the post in dispute and that they will receive letters to that effect in due course.
18.15 It is common practice that there are situations where the SGB can request the assistance of the Department in selecting the interviewing committee. The SGB was never denied an opportunity to select the interview committee hence all of the three officials were even called in their presence. The allegation that the third official imposed on the SGB is farfetched and lacks basis. If this were correct, surely, SGB as a juristic person could have lodged a complaint or minuted that in one of their meetings. Diteho submitted a voluminous bundle of documents and same is captured nowhere in that bundle. This is not even captured in the interview minutes on page 29 to 31 of the applicant’s bundle, neither is it in the letter of motivation from the SGB (Page 32 of the Applicant’s bundle).
18.16 In Du Toit et al Labour Relations Law: A Comprehensive Guide (5th ed) 486, “there is no right to promotion…, however employees have the right to be fairly considered for promotion when the vacancy arises”
18.17 In order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote; i.e., the applicant needs to show that; but for the irregularity or unfairness, she would have been appointed in the post.((Woolworths v Whitehead (2000) 21 ILJ 571 (LAC).
18.18 The applicant in ULP promotion disputes is required to prove inter alia that he was the best candidate of all the applicants to the post and that had it not been of the unfairness by the employer, he would have been appointed in that post (Woolworths v Whitehead (2000) 21 ILJ 571 (LAC). The applicant failed dismally to demonstrate this most important principle in that it was proven that affirmative action did not also favor the Second Respondent, that she had sports related qualifications and vast experience in school sports and sports in general and lastly that she was ranked third whilst the Second Respondent was ranked 2nd during the interviews.
18.19 An employee who alleges that he is a victim of unfair labour practice bears the onus of proving the claim on a balance of probabilities, the employee must prove not only the existence of the labour practice, but also that it is unfair; (Grogan Dismissal, Discrimination and Unfair labour Practices (2nd ed) at 48). This is supported by Du Toit et al which concurs with Grogan by indicating that mere unhappiness or a perception of unfairness does not establish an unfair conduct.
18.20 Diteho submitted in paragraph 13 of her arguments that the chairperson of the interview committee must be a post level higher than the Applicant. He relies on Departmental circular 10 of 2013. The post in dispute is advertised in terms of Departmental circular 58 of 2020. The reading of this circular is in line with Chapter 3 of the EEA and PAM. It is meant to put before all the parties involved in the recruitment process at that time to refer to. This circular refers to EEA and ELRC Collective Agreement 5 of 1998. Nowhere does it refer to a circular or even circular 10. If the circular were in line with the legislation, particularly this specific point, surely, it could have been cited or quoted in this circular. The First Respondent provides in paragraph 7.9 of circular 58, that interview questions must be set in the morning, this paragraph is similar to that in paragraph 2.8 of circular 10. This is a clear indication that what is contained in circular 58 is what must be followed, else, circular 58 could have referred to circular 10 in its totality, but instead it only referred to what is currently relevant and lawful.
18.21 In South Africa, sources are labour law are: It is trite that departmental circulars are not sources of law in South Africa. A circular is not a directive and thus creates no enforceable legal rights or obligations. It is a tool of communication that the employer uses to communicate with his employees. In this instance, the
18.21.1 The Constitution of the Republic of South Africa (S23);
18.21.2 Labour legislation/ Statutes, including Ministerial determinations;
18.21.3 Collective agreements concluded in bargaining Councils;
18.21.4 Collective agreements concluded outside of bargaining councils;
18.21.5 Contracts of employment;
18.21.6 Common law; and
18.21.7 Custom and legal writings.
18.22 It is trite that departmental circulars are not sources of law in South Africa. It is against this background that no reference is made to any circular in departmental circular 58 of 2020. Circular 58, as submitted herein above is in line with PAM, ELRC collective agreement and EEA, to list a few. A circular is not a directive and thus creates no enforceable legal rights or obligations. It is a tool of communication that the employer uses to communicate with his employees. It is not meant to create laws which are outside the sources of laws of South Africa.
18.23 There is nowhere in this circular where it is stated that the chairperson of the interviewing committee must be a post level higher that the advertised post. It only provides that the interviewing panel must choose amongst itself a chairperson. It thus follows that a chairperson of the committee may be any of the interview panel members depending on that group of panelists. The Applicant does not in any way demonstrate how this constitution of the panel prejudiced her. She again does not demonstrate the causal connection between the manner in which the interview committee/ panel has been constituted and her not being promoted (Woolworths v Whitehead). This thus amounts to mere unhappiness or perception of unfairness which does not establish the unfair conduct [Du Toit et al Labour Relations Law).
18.24 It is against this background that Diteho’ s argument that she was unfairly treated in relation to this issue is unsubstantiated.
18.25 In SAPS v SSSBC [2010] 892 BLLR (LC) the Court held that an arbitrator or court is not the employer. The decision to promote or not to promote falls within the prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of discretion.
18.26 The Respondent has demonstrated that failure to promote Diteho was not based on bad faith, nor was it unreasonable or even flawed. The Respondent acted within the prescripts of the law and thus submits that there is no unfair labour practice perpetuated against Diteho as alleged.
18.27 Strict compliance with the guidelines of PAM and ELRC Collective agreements is not necessary, substantial compliance is sufficient (Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, case No 02/15349, [2006] JOL 17802 (W)).
ANALYSIS OF EVIDENCE AND ARGUMENT:
Affirmative action
19 Equity targets in the workplace must be contained in an Equity Plan. Section 20(1) the EEA provides that “A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in the workplace”. This plan is usually a five-year plan. The reports referred represent progress towards the goals to be achieved by the end of the period.
20 I agree with Phuswane’ s submission that in determining the targets, focus cannot only be on principals (PL4) but within a category. All principals are at PL 4 and fall within the junior management category.
21 I cannot find that the Respondent acted unfairly in appointing a Black male rather than a Black female into the post in the five-year period.
Was the interview committee properly constituted?
22 .Clause B.5.4.5 of the PAM provides that the SGB is responsible for the convening of the interview committee. Departmental Circular 58 of 2020 provides at 6.2 that the SGB must establish the shortlisting committee, and at 7.1, the SGB must establish the interview committee.
23 In terms of Circular 58 of 2020, where it is not possible for the governing body to carry out the aforementioned tasks, a District official should assist it. Tshilo argued that the SGB was capable of carrying out their task of establishing the interview committee and that the involvement of the circuit manager was unnecessary and led to procedural unfairness.
24 It is common cause that the chairperson of the interview committee was a school principal, the same level as the advertised post. Circular 10 of 2013 contains the “Recruitment and Selection of Employees”. At 2.3 it provides that the chairperson of an interview committee should be at least one level higher than the post advertised.
25 Phuswane argued that the Respondent was not bound by circulars and that nowhere in the circular was it stated that the chairperson of the interviewing committee must be a post level higher than the advertised post. It only provides that the interviewing panel must choose amongst itself a chairperson. Therefore, a chairperson of the committee may be any of the interview committee members.
26 In terms of ELRC Resolution 3 of 2016 ELRC Guidelines in promotion arbitration, paragraph 32 and 33 specifically prescribes that an employee who refers a promotion dispute must allege and prove that the decision not to appoint him or her was unfair. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her fair opportunity to complete for a post, or conduct that was arbitrary or motivated by an unacceptable reason. Diteho was not prejudiced by the fact that the interview committee was not constituted properly because chairperson of an interview committee was not at least one level higher than the post advertised. The chairperson was of the same rank and Diteho was the recommended candidate. It was this panel that was not properly constituted that gave her a higher assessment rating than the incumbent. There was substantial compliance in the procedures followed, in that although the chairperson was not of a higher rank of the post advertised, he was of an equal rank.
27 Diteho was not prejudiced nor denied the opportunity to compete for the post.
FINDING
28 For the reasons stated above I find that the Respondent has not committed unfair conduct in the promotion process.
AWARD
29 The Respondent did not act unfairly.
D H Smith
ELRC PANELIST
25 April 2022
Case No.: PSES179-20/21NW Date of Award: 25 April 2022
In the ARBITRATION between:
SUZAN DITEHO
(Union / Applicant)
and
FIRST RESPONDENT: DEPARTMENT OF EDUCATION NORTH WEST
SECOND RESPONDENT: DONALD MASIU
(Respondent)
Applicant’s representative: Mr. B T Tshilo
Respondent’s representative: Ms. Boity Phuswane
Mr. Connie Cindy
Tel: 0183884108
DETAILS OF HEARING AND REPRESENTATION:
1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(1)(a) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard using video conferencing on 22 February 2022.
2. The Applicant, Ms. Suzan Diteho (Diteho), was represented by Ms. Connie Cindy. The First Respondent was represented Ms. Boity Phuswane (Phuswane), its SES: Disputes. The Second Respondent, Mr. Donald Masiu (Masiu), was represented by Mr. Connie Cindy.
3. The process was digitally recorded, and I took handwritten notes.
4. Diteho submitted a bundle of documents marked A.
5. The parties agreed to submit closing argument as follows:
1 March 2022 Applicant
6 March 2022 Respondent
9 March 2022 Applicant
ISSUE TO BE DECIDED:
6. Whether the Respondent committed unfair conduct in not appointing Diteho in the position of principal.
7. If I find in the positive, I must decide upon an appropriate remedy.
BACKGROUND:
8. The post of principal was advertised. Diteho applied and was shortlisted. She scored the highest and was recommended by the School Governing Body. Masiu was, however, appointed.
9. Tshilo argued that the process had been procedurally flawed as:
9.1. The interview panel was not properly constituted;
9.2. The chairperson was biased; and
9.3. The position had been advertised as affirmative action.
9.4 The Parties compiled and signed pre arbitration minutes and agreed as follows:
Facts that are Common Cause
9.3.1. Diteho is an employee of the First Respondent, appointed as a Deputy Principal PL3.
9.3.2. She is stationed at Tshenolo Primary School, which is in the Lekwa-Teemane Circuit, in the Dr Ruth Segomotsi Mompati district.
9.3.3. Her basic salary is R37286, 25 per month.
9.3.4. The Respondent advertised the principal’s (PL 4) of Tshenolo Primary School in Circular 58 of 2020, with post number DRSM2020/11/796.
9.3.5. The post is graded at P4
9.3.6. Diteho had been acting in the pos at the time of its advertisement.
9.3.7. Diteho applied, was shortlisted and interviewed for the post.
9.3.8. The Respondent appointed Masiu to the post.
Facts in dispute
9.3.9. The recruitment and selection panel were properly constituted.
9.3.10. The chairperson of the interviewing panel was not a level higher than the post advertised.
9.3.11. The chairperson’s scoring was biased against Diteho.
9.3.12. The Respondent deviated from the SGB’s recommendation.
9.3.13. The Respondent did not consider its affirmative action targets when it appointed Masiu.
9.3.14. Diteho was the best candidate of all the candidates that applied for the post.
Issues that the Panelist is required to decide.
9.3.15. Whether or not the Respondent committed an unfair labour practice when she failed to promote the Applicant to the Principal post no. DRSM2020/11/796
REMEDY
10. Diteho sought to be appointed in the role of principal: DRSM2020/11/796
SURVEY OF EVIDENCE AND ARGUMENT:
11. For purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.
12. Most of the evidence was common cause.
APPLICANT’S VERSION
13. Ms. Constance Keletsemile Mathupi, educator, testified under oath that:
13.1. She had been the secretary of the former SGB committee and the interview panel.
13.2. The SGB chose two panel members. The district manager chose the chairperson. As the position was a Post Level 4 the circuit manager should have chaired it
13.3. A90 was an extract from PAM.
13.4. She referred to A90 B5.5.
13.5. She referred to A89 2.3 the Circular 10 of 2013. It stated that the chairperson of the panel must be at least a level higher than the post advertised.
14. In cross-examination she testified that:
14.1. A94 Circular 58 of 2020 contained no reference to the chairperson having to be a level higher.
14.2. A90-93 was the Ministerial determination that dealt with the advertising of posts.
15. Tshilo argued that:
15.1. The Respondent committed unfairness on two procedural grounds, namely that the Interview Committee was not constituted properly, and that the Responded did not consider affirmative action targets when she appointed the incumbent, who is a male.
15.2. Diteho sought that the appointment of the Second Respondent be set aside and that the process be repeated, under a new panel, from the shortlisting stage.
15.3. During arbitration the issues in dispute were further narrowed down as follows:
15.3.1. The shortlisting and interview committee was not constituted properly.
15.3.2. The Respondent did not consider affirmative action targets when she appointed the incumbent, a male to the post.
Constitution of the Interview Committee
15.4. Diteho’ s witness, Mothupi, lead evidence that she was the secretary of the former SGB as well as the secretary for the interview committee. She further testified that the SGB selected two members of the Interview Committee while the Circuit Manager, Mr. Bafanah, selected the remaining member, namely the chairperson of the committee. The Respondent did not challenge this.
15.5. Clause B.5.4.5 of the PAM provides that the SGB is responsible for the convening of the interview committee. Departmental Circular 58 of 2020 provides at 6.2 that the SGB must establish the shortlisting committee, and at 7.1, the SGB must establish the interview committee.
15.6. In terms of Circular 58 of 2020, where it is not possible for the governing body to carry out the aforementioned tasks, a District official should assist it. The SGB was capable of carrying out their task of establishing the interview committee. The involvement of the Circuit Manager thus amounted to over-reach, leading to procedural unfairness.
15.7. Mothupi further testified that the chairperson of the interview committee was a school principal and not a circuit manager. This was not a post level higher than the post that was advertised. This was not challenged. The Respondent challenged whether it was a requirement that the chairperson should have been a post level higher than the advertised post. Mothupi relied on Respondent’s Circular 10 of 2013 for its assertion. This is titled “Recruitment and Selection of Employees”. The circular identifies challenges in recruitment and selection processes of the Respondent and provides ways to mitigate these challenges. The circular, at 2.3 provides that the chairperson of an interview committee should be at least one level higher than the post advertised (Annexure 8). It is an undisputed fact that the chairperson of the Interview Committee in question was a school principal, and therefore on Post Level 4, which is the same level as that of the advertised post. This gives rise to further wrong constitution of the Interview Committee and thus procedural unfairness.
15.8. Diteho was prejudiced by being subjected to a process conducted by an improperly constituted interview committee.
Affirmative Action
15.9. The Respondent should have considered affirmative action, specifically Diteho’ s gender when making the appointment. Instead, they appointed Masiu, a male, to the post. The post was advertised in Circular 58 of 2020, which provides at 2.5.1, that the filling of posts must be guided by ‘affirmative action for designated groups, (namely Blacks which include Africans, Coloureds and Indians), women and disabled persons.)
15.10. The PAM, clause B.5.1.1 provides that when filing posts, due regard must be given to equality, equity and other democratic values and principles. The PAM is a ministerial determination made in terms of the Employment of Educators Act (Educators’ Act) and is therefore subordinate legislation. The abovementioned PAM provisions mirror the provisions the Educators’ Act at section 7.1.
15.11. The Respondent published its Annual Report document for the financial year 2018/2019 on its website. It reports that the actual percentage of women in Principalship posts for 2017/18 was 37% and that of 2018/19 was 38%, whereas the planned target for the same period was 50%. This represented a deviation of 12% from the planned target. The Respondent blames this anomaly on lack of adherence to the equity plan.
15.12. The Respondent also published its Annual Performance Plan for the financial year 2019/2020 on its website. In this plan the Respondent captures its actual performance in terms of women in Principalship posts as 39% and the estimated performance for the periods 2018/19, 2019/20, 2020/21 and 2021/22 all at 50%.( Annexure 12, number 44)
15.13. The Respondent thus had a target of 50% for women in principalship posts. This target had not been reached when the disputed post was advertised. Nevertheless, the Respondent proceeded to appoint a male in the post, overlooking the applicant, a female. This despite the provisions of the Respondent’s own advertisement, the PAM, the Educators’ Act, as well as its own affirmative action targets. It follows that the process to fill the post was flawed and gives rise to procedural unfairness. Diteho suffered prejudice because of this unfairness.
The right to fair labour practices
15.14. The Constitution guarantees everyone the right to fair labour practices, which right is further given effect through the provisions of section 186(2) of the LRA and the EEA.
Test of fairness
15.15. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others(2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) the Court held that the overall test on promotion disputes is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer…or whether the employer failed to comply with applicable procedural requirements related to promotions.
An employer’s procedure for promotions
15.16. In George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC), the Court considered procedural unfairness in relation to procedures laid down by an employer before filling promotional posts. The Court held:
It was accepted that an employer may be held to a contractual term or practice to the effect that the employee will be promoted or transferred and/or that a certain procedure will be followed prior to the filling of the post. The presiding officer stated that: ‘it would therefore stand to reason that during the subsistence of the contractual relationship or the wider concept of an employment relationship issues regarding promotion or a lateral transfer to another job with the employer would be considered legitimate subjects of the existing employment relationship. An employer who held out to a person in his or her employ that that person could apply for promotion and that a certain procedure and practice would be followed before filling a vacancy would be held by this court, in the absence of any necessary justification, to that contract of promise’.
15.17. The Respondent had laid down procedures to be followed in filling the disputed promotional post. She had done so through the PAM, Circular 58 of 2020 that advertised the post, as well as Circular 10 of 2013 that guides the selection and recruitment processes.
15.18. The SGB should have established the interview committee and the chairperson of the committee should have been at least one level higher than the post advertised.
15.19. The court held in City of Cape Town v SA Municipal Workers Union, supra, that the test for fairness in promotions requires, amongst others, a consideration of whether the applicable prescribed procedures for filling the post were complied with.
15.20. In terms of George v Liberty Life, supra, laid down by an employer amount to a contract of promise to applicants in their employ. The Respondent was bound to follow these procedures when filling the post. It follows that failure to do so prejudiced Diteho and resulted in procedural unfairness.
16. Tshilo replied:
16.1. The issues in dispute were further narrowed down to:
16.1.1. The interview committee was not constituted properly.
16.1.2. The Respondent did not consider affirmative action targets when they Masiu, a male, to the post.
16.2. Diteho sought that the appointment of Masiu to the post of Principal at Tshenolo Primary School should be set aside and the process be repeated, under a new panel, from the shortlisting stage. She does not seek appointment into the post as she contends to have suffered procedural unfairness during the filling of the post.
16.3. Diteho addressed only the narrowed issues.
16.4. Diteho had factual issues to raise, and indeed, called a witness to raise such issues. The Respondent, on the other hand, did not indicate that the too had factual issues to raise; neither did she call any witness to raise such issues. Phuswane instead stated that she would argue her case on the law.
16.5. Phuswane applied for postponement of proceedings because she was not feeling well and that the issue of witnesses did not arise at that point as well.
16.6. It is incorrect for Phuswane to contend that she was not afforded the opportunity to call witnesses and then to rely on factual evidence, as in paragraphs 6.10, 6.11, 7.1 and 7.2 of her arguments, when parties have agreed that factual issues were dealt with during arbitration and that points of law would be argued on paper.
Affirmative Action
16.7. The Respondent contends at paragraph 6.5 that both Diteho and Mosiu are black and there is therefore no unfair labour practice as a Black person was appointed. Affirmative action strives to bring about equality in terms of gender as well as well as disability. The Respondent should have considered Diteho, s gender as well, more so as the choice to appoint was between two Blacks.
16.8. The Respondent is argued that equity targets must be contained in an equity plan and not a report (paragraph 6.8). These are not just mere reports, but detailed, comprehensive official Annual Reports and Annual Performance Plans, which were published on the Respondent’s website. While the first part of the contention is correct, there is nothing prohibiting such targets to be communicated to the public as dictated by transparency and public accountability. This further promotes access to information. The Respondent would not publish inaccuracies or irrelevant information in such reports. The Respondent expressly committed to the accuracy of the reports.
16.9. The Respondent by posting both reports on its website, is communicating to the province, the country and indeed the world as to the state of its department as well as how it plans to improve performance in same. Reliance on these reports can therefore not be seen to be misleading the arbitration.
16.10. Paragraph 6.9 also avers that the targets on which Diteho relies, provides for a five-year period, which has not yet lapsed and therefore non-achievement of the target cannot be claimed. Further, that the disputed post was advertised with many other principalship posts, which may well enable the Respondent to reach the estimated targets. Diteho agrees that the planned five-year period has not yet lapsed. A reasonable employer would therefore use the available time to reach the targets, and not wait until the completion of the five-year period. Furthermore, a reasonable employer, when presented with an opportunity to work towards achieving its own target, as is the case with the disputed post, would not miss such an opportunity, with the expectation that some other recruitment process may enable it to reach the target.
Over-representation of females on junior management level
16.11. The Respondent, at paragraph 6.10, and 6.11, introduces new factual evidence as was presented by a Mr. Motaung at another arbitration. Assuming this evidence is accepted, which we submit should not be the case, she refers the Commissioner to an extract of an arbitration award annexed to her Heads of Arguments as R2 (paragraphs 34-36) and R3 (paragraph 44). The evidence that Mr. Motaung reportedly gave at such a sitting is noted. The Applicant would dispute the fact that for the period of 2017/2018 to 2020/2021, women in junior management were over-represented.
16.12. The Respondent in its Annual Performance Plan of 2019/20 gives her target for women in principalship posts as 50%. Under the column ‘Justification for Target’, Phuswane writes ‘Equity Plan’. In terms of the same performance indicator (women in Principalship posts) in the Annual Report of 2018/19, the Respondent had already indicated that it had achieved at 39% for the period 2017/18 and 38% for the period 2018/19. Under the heading ‘Comment on deviation’ is written ‘Employment equity targets are not adhered to’). On both occasions, the Respondent refers to her own equity targets. The Respondent had regard to its equity targets when compiling these reports.
16.13. Paragraph 7.2 of the Respondent’s Heads of Argument, where it is argued that the SGB agreed with the circuit manager on the three officials who served as the interview committee. Phuswane argued that the SGB did not complain about the constitution of the committee in their minutes and recommendation letter. This is new factual evidence, which is being belatedly raised. Mothupi testified that she was the secretary of the SGB in question. The Respondent had the opportunity to question her during cross-examination but did not do so. Diteho stands by her contention that the circuit manager selected the third member of the interview committee, without the invitation of the SGB to do so.
Substantive unfairness not alleged
16.14. Diteho does not allege substantive unfairness.
Circulars not being sources of law
16.15. The Respondent argued that circulars are not sources of law in South Africa and Circular 10 of 2013, which provides that the chairperson of the interview committee should be at least a post level higher than the advertised post, is of no effect. Circulars are a tool that the employer uses to communicate to its employees. Diteho relied on Circular 10 of 2013 for her contention relating to the post level of the chairperson of the interview committee precisely because the employer through its customary tool communicated it, namely said circular. This is the same way in which she relied on the advertisement of the post as it was also communicated through a circular, namely Circular 58 of 2020. She thus submits that the Respondent must be held to her word, as far as recruitment proceedings are concerned, as was held in George v Liberty Life Association of Africa Ltd, supra.
An employer’s prerogative to promote or not promote
16.16. The Respondent refers to the employer’s prerogative to promote or not to promote, with reliance on SAPS v SSSBC [2010] 892 BLLR (LC). The court held that in the absence of gross unreasonableness or bad faith or where the decision relating to the promotion is seriously flawed, an arbitrator should not readily interfere with the employer’s exercise of discretion. There was gross unreasonableness in that Diteho was subjected to an improperly constituted interview committee not entirely established by the SGB, where the chairperson thereof was not a post level higher than the advertised post, and that the Respondent further did not consider affirmative action targets as the recruitment procedure required of her. There are enough grounds to interfere with the Respondent’s discretion to promote or not promote.
Substantial compliance
17. On the Respondent’s averment, that substantial compliance with recruitment guidelines is sufficient. An improperly constituted interview committee and not considering affirmative action targets by the Respondent are not just insignificant procedural flaws that can be overlooked. These are key procedures to be followed when filling posts, failing which, substantial compliance cannot be said to have taken place.
RESPONDENT’S VERSION
18. Phuswane submitted that:
18.1. The Applicant lodged an unfair labour practice dispute relating to promotion to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA) which it states as follows:
“Unfair labour practice means any unfair act or omission that arises between the employer and an employee involving-
(a) unfair conduct by the employer relating to promotion … .
18.2. In Mashegoane v University of the North the Labour Court defined promotion as being elevated or appointed in a position that carries greater authority and status than the current position the employee is in. The case in dispute meets this definition.
Arguments on substantive issues
18.3. Diteho argued that First Respondent did not have regard to its affirmative action targets when it appointed the Second Respondent.
18.4. An employee who alleges that he is a victim of an unfair labour practice bears the onus to prove that claim on a balance of probabilities. This is according to Grogan in Dismissal, Discrimination and Unfair labour Practices (2nd ed.). This means that the employee must prove not only the existence of the labour practice, but also that it was unfair. The employer thus is only required to rebut the evidence of the applicant if necessary. Unhappiness or perception of unfairness does not establish the unfair conduct [Du Toit et al Labour Relations Law (5th ed.) 488]. Diteho, therefore, bears the onus to prove that the First Respondent failed to take into consideration affirmative action when making appointment into the disputed principal PL 4 post; which measures could have favored her over the Second Respondent.
18.5. It is common cause that paragraph 2.5.1 of the Departmental Circular 58 of 2020 provides that the filling of these post must further be guided by “Affirmative action for designated groups, (namely Blacks which includes Africans, Colored and Indians), women and disabled persons”. This paragraph is in line with section 15 of the Employment Equity Act 55 of 1998 (EEA). Paragraph 6.4 states clearly the affirmative action designated groups which are categorized as Blacks; which include inter alia Africans. It is common cause that the Second Respondent is Black and thus African, as is Diteho The Second Respondent was ranked the highest after the interviews and Diteho was scored second. The First Respondent was not wrong to have appointed the Second Respondent as he is covered by the affirmative action targets under the category of Blacks as contained in both the EEA read with the Departmental Circular 58 of 2020.
18.6. Diteho argued in paragraphs 20 and 21 that the department published the annual reports which by implication states that the respondent has failed during the periods 2017/ 2018 and 2018/2019 to meet the 50% target of women in principal posts. He further submits that the First Respondent, in the report that “the actual performance in terms of women n principalship posts was at 39% in 2018/2019 and the estimated performance for the periods 2018/2019, 2019/20, 2020/21 and 2021/22 all at 50%.
18.7. Diteho is not addressing the issue of affirmative action as provided for in this Departmental Circular and the EEA. It has been demonstrated in paragraph 6.5 herein above that the there was no unfair labour practice perpetuate against Diteho in respect of affirmative action.
18.8 Equity targets in the workplace must be contained in an Equity Plan and not a report as argued by Diteho. Section 20(1) the EEA provides that “A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in the workplace”. This plan is usually a five-year plan.
18.9 Diteho was misleading the Council by wanting to use a report to address the issue that requires an Equity Plan. That is incorrect. However, his argument is still lacking in that she argues that the report provides for a five-year period to achieve the said percentage. It is an undisputable fact that the five years she is referring to is still not over. To suggest that the estimated target has not been achieved as yet is misleading. The post was advertised with many other principal posts which could also enable the First Respondent to reach the estimated performance.
18.10 On 23 November 2021, Motaung, the Director for Human Resources Management and an Equity Manager appointed in terms of section 24 (1) of the EEA t Respondent testified that he is the Equity Manager for the 1st respondent. The very same issue on affirmative action was raised where the Applicant was a female and contested that affirmative action targets were not met in that the 1st Respondent appointed a Black male instead of her. The post was that of a DECS. His testimony, which was never challenged. Motaung further submitted that Equity targets are determined in terms of the following categories
• Junior Management (SL 9-SL10 and PL3-PL5)
• Middle Management ( DD and CES) and
• Senior management (Director upwards)
18.11 That post fell within this five-year period. The Commissioner found that there was no unfair labour practice against the Applicant in relation to this aspect. This explanation clearly indicates that in determining the targets, focus cannot only be on principals (PL4) but within a category. All principals are at PL 4 and thus fall within the junior management category. The submission by the applicant that the 1st Respondent has a deficit of 12% in fulfilling the 50% target is thus contrary to what equity really is. In his testimony, Motaung submitted that for the period 2017/2018 to 2020/2021, women in Junior Management are over-represented.
18.12 There was no unfair labour practice perpetuated against the Application in relation to affirmative action.
Constitution of the interview committee
18.13 The Respondent were never afforded an opportunity to call their witnesses, save to indicate that the First Respondent’s representative made an application for postponement as she was not feeling well, in fact she had no voice and was thus not in a position to do justice to her case in an event arbitration were to proceed. It was however ruled that only one-piece evidence from the applicant be presented, and the matter be argued on paper.
18.14 Diteho submitted that only two of the interview committee members were selected by the SGB whilst the circuit manager selected the third member. This is incorrect. The SGB agreed in a meeting with the circuit manager that the three officials form part of the interview committee. They were all called by the circuit manager in the presence of the SGB that they were selected by the SGB to be panelists in the post in dispute and that they will receive letters to that effect in due course.
18.15 It is common practice that there are situations where the SGB can request the assistance of the Department in selecting the interviewing committee. The SGB was never denied an opportunity to select the interview committee hence all of the three officials were even called in their presence. The allegation that the third official imposed on the SGB is farfetched and lacks basis. If this were correct, surely, SGB as a juristic person could have lodged a complaint or minuted that in one of their meetings. Diteho submitted a voluminous bundle of documents and same is captured nowhere in that bundle. This is not even captured in the interview minutes on page 29 to 31 of the applicant’s bundle, neither is it in the letter of motivation from the SGB (Page 32 of the Applicant’s bundle).
18.16 In Du Toit et al Labour Relations Law: A Comprehensive Guide (5th ed) 486, “there is no right to promotion…, however employees have the right to be fairly considered for promotion when the vacancy arises”
18.17 In order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote; i.e., the applicant needs to show that; but for the irregularity or unfairness, she would have been appointed in the post.((Woolworths v Whitehead (2000) 21 ILJ 571 (LAC).
18.18 The applicant in ULP promotion disputes is required to prove inter alia that he was the best candidate of all the applicants to the post and that had it not been of the unfairness by the employer, he would have been appointed in that post (Woolworths v Whitehead (2000) 21 ILJ 571 (LAC). The applicant failed dismally to demonstrate this most important principle in that it was proven that affirmative action did not also favor the Second Respondent, that she had sports related qualifications and vast experience in school sports and sports in general and lastly that she was ranked third whilst the Second Respondent was ranked 2nd during the interviews.
18.19 An employee who alleges that he is a victim of unfair labour practice bears the onus of proving the claim on a balance of probabilities, the employee must prove not only the existence of the labour practice, but also that it is unfair; (Grogan Dismissal, Discrimination and Unfair labour Practices (2nd ed) at 48). This is supported by Du Toit et al which concurs with Grogan by indicating that mere unhappiness or a perception of unfairness does not establish an unfair conduct.
18.20 Diteho submitted in paragraph 13 of her arguments that the chairperson of the interview committee must be a post level higher than the Applicant. He relies on Departmental circular 10 of 2013. The post in dispute is advertised in terms of Departmental circular 58 of 2020. The reading of this circular is in line with Chapter 3 of the EEA and PAM. It is meant to put before all the parties involved in the recruitment process at that time to refer to. This circular refers to EEA and ELRC Collective Agreement 5 of 1998. Nowhere does it refer to a circular or even circular 10. If the circular were in line with the legislation, particularly this specific point, surely, it could have been cited or quoted in this circular. The First Respondent provides in paragraph 7.9 of circular 58, that interview questions must be set in the morning, this paragraph is similar to that in paragraph 2.8 of circular 10. This is a clear indication that what is contained in circular 58 is what must be followed, else, circular 58 could have referred to circular 10 in its totality, but instead it only referred to what is currently relevant and lawful.
18.21 In South Africa, sources are labour law are: It is trite that departmental circulars are not sources of law in South Africa. A circular is not a directive and thus creates no enforceable legal rights or obligations. It is a tool of communication that the employer uses to communicate with his employees. In this instance, the
18.21.1 The Constitution of the Republic of South Africa (S23);
18.21.2 Labour legislation/ Statutes, including Ministerial determinations;
18.21.3 Collective agreements concluded in bargaining Councils;
18.21.4 Collective agreements concluded outside of bargaining councils;
18.21.5 Contracts of employment;
18.21.6 Common law; and
18.21.7 Custom and legal writings.
18.22 It is trite that departmental circulars are not sources of law in South Africa. It is against this background that no reference is made to any circular in departmental circular 58 of 2020. Circular 58, as submitted herein above is in line with PAM, ELRC collective agreement and EEA, to list a few. A circular is not a directive and thus creates no enforceable legal rights or obligations. It is a tool of communication that the employer uses to communicate with his employees. It is not meant to create laws which are outside the sources of laws of South Africa.
18.23 There is nowhere in this circular where it is stated that the chairperson of the interviewing committee must be a post level higher that the advertised post. It only provides that the interviewing panel must choose amongst itself a chairperson. It thus follows that a chairperson of the committee may be any of the interview panel members depending on that group of panelists. The Applicant does not in any way demonstrate how this constitution of the panel prejudiced her. She again does not demonstrate the causal connection between the manner in which the interview committee/ panel has been constituted and her not being promoted (Woolworths v Whitehead). This thus amounts to mere unhappiness or perception of unfairness which does not establish the unfair conduct [Du Toit et al Labour Relations Law).
18.24 It is against this background that Diteho’ s argument that she was unfairly treated in relation to this issue is unsubstantiated.
18.25 In SAPS v SSSBC [2010] 892 BLLR (LC) the Court held that an arbitrator or court is not the employer. The decision to promote or not to promote falls within the prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of discretion.
18.26 The Respondent has demonstrated that failure to promote Diteho was not based on bad faith, nor was it unreasonable or even flawed. The Respondent acted within the prescripts of the law and thus submits that there is no unfair labour practice perpetuated against Diteho as alleged.
18.27 Strict compliance with the guidelines of PAM and ELRC Collective agreements is not necessary, substantial compliance is sufficient (Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, case No 02/15349, [2006] JOL 17802 (W)).
ANALYSIS OF EVIDENCE AND ARGUMENT:
Affirmative action
19 Equity targets in the workplace must be contained in an Equity Plan. Section 20(1) the EEA provides that “A designated employer must prepare and implement an employment equity plan which will achieve reasonable progress towards employment equity in the workplace”. This plan is usually a five-year plan. The reports referred represent progress towards the goals to be achieved by the end of the period.
20 I agree with Phuswane’ s submission that in determining the targets, focus cannot only be on principals (PL4) but within a category. All principals are at PL 4 and fall within the junior management category.
21 I cannot find that the Respondent acted unfairly in appointing a Black male rather than a Black female into the post in the five-year period.
Was the interview committee properly constituted?
22 .Clause B.5.4.5 of the PAM provides that the SGB is responsible for the convening of the interview committee. Departmental Circular 58 of 2020 provides at 6.2 that the SGB must establish the shortlisting committee, and at 7.1, the SGB must establish the interview committee.
23 In terms of Circular 58 of 2020, where it is not possible for the governing body to carry out the aforementioned tasks, a District official should assist it. Tshilo argued that the SGB was capable of carrying out their task of establishing the interview committee and that the involvement of the circuit manager was unnecessary and led to procedural unfairness.
24 It is common cause that the chairperson of the interview committee was a school principal, the same level as the advertised post. Circular 10 of 2013 contains the “Recruitment and Selection of Employees”. At 2.3 it provides that the chairperson of an interview committee should be at least one level higher than the post advertised.
25 Phuswane argued that the Respondent was not bound by circulars and that nowhere in the circular was it stated that the chairperson of the interviewing committee must be a post level higher than the advertised post. It only provides that the interviewing panel must choose amongst itself a chairperson. Therefore, a chairperson of the committee may be any of the interview committee members.
26 In terms of ELRC Resolution 3 of 2016 ELRC Guidelines in promotion arbitration, paragraph 32 and 33 specifically prescribes that an employee who refers a promotion dispute must allege and prove that the decision not to appoint him or her was unfair. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her fair opportunity to complete for a post, or conduct that was arbitrary or motivated by an unacceptable reason. Diteho was not prejudiced by the fact that the interview committee was not constituted properly because chairperson of an interview committee was not at least one level higher than the post advertised. The chairperson was of the same rank and Diteho was the recommended candidate. It was this panel that was not properly constituted that gave her a higher assessment rating than the incumbent. There was substantial compliance in the procedures followed, in that although the chairperson was not of a higher rank of the post advertised, he was of an equal rank.
27 Diteho was not prejudiced nor denied the opportunity to compete for the post.
FINDING
28 For the reasons stated above I find that the Respondent has not committed unfair conduct in the promotion process.
AWARD
29 The Respondent did not act unfairly.
D H Smith
ELRC PANELIST
25 April 2022