ELRC551-21/22FS
Award  Date:
  04 July  2022
Panelist : Alta Reynolds

Case Number : ELRC551-21/22FS

Date of Award : 4 July 2022


In the ARBITRATION between:


Tsibulane, Mapaseka Angela
(Union/Applicant)

and

Department of Education: Free State Province
(1st Respondent)


Makoti, Refilwe Sharlote
(2nd Respondent)


DETAILS OF HEARING AND REPRESENTATION

1. The matter was set down by the Education Labour Relations Council (ELRC) as an alleged unfair labour practice relating to promotion referred in terms of section 186 (2)(a) of the Labour Relations Act 66 of 1995 as amended (the LRA) and was conducted virtually via Zoom video conferencing on 21 June 2022 commencing at 09h00.

2. Present for the referring employee (the Applicant) were Mr Sabata Motete (SADTU Official as Representative) and Ms Mapaseka Angela Tsibulane (the Applicant). Present for the employer, the Department of Education: Free State Province (the 1st Respondent), was Mr Thulo Tsunke (Assistant Director as Representative). Present too as joined in these proceedings as the 2nd Respondent were Ms Refilwe Sharlote Makoti (the successful candidate for the disputed post) and Mr Ramakhera Dikotsi (NAPTOSA Official as Representative).

3. The proceedings were conducted in English, with Zoom, digital and electronic recordings made.

4. The parties did not require an explanation of the arbitration proceedings.

5. No preliminary issues required to be addressed.

6. Verbal closing arguments were submitted by the parties at the conclusion of the proceedings.

ISSUE TO BE DECIDED

7. The purpose of this arbitration is to determine whether the 1st Respondent had committed an unfair labour practice relating to promotion in terms of section 186 (2)(a) of the LRA by not appointing/promoting the Applicant in the advertised post of Departmental Head Post Level 2 at Tlotliso Primary School. The relief sought was that the appointment process be redone by a different Interview Committee.

BACKGROUND TO THE DISPUTE

The following facts were established as common cause

8. The Applicant joined the 1st Respondent on 14 March 1996 at a school in Zastron, Free State and was appointed at Tlotliso Primary School on 4 June 2001. Tlotliso Primary School is located in Wepener, Free State and falls under Circuit 12 of Motheo District. The Applicant is currently occupying a Post Level 1 position teaching all Grade 3 subjects at Foundation Phase with Persal number 80031480. She applied for the post of Departmental Head Post Level 2 on salary level 08 at Tlotliso Primary School advertised in vacancy list 2 of 2019 dated 7 October 2019 under post number 820589/204, with a closing date of 7 November 2019. Two shortlistings took place for the same post. The first shortlisting was done in March 2020. The Applicant and the 2nd Respondent were not shortlisted during the first process. Interviews were conducted and a recommendation was made to the Head of Department for the first process. The Union NAPTOSA who were present as an observer lodged a grievance relating to that process and the shortlisting and interviewing was taken over and repeated by an independent panel in Bloemfontein.

9. The Applicant and the 2nd Respondent were both shortlisted and interviewed during the second process by the independent panel. These interviews took place on 23 July 2021. There were five candidates shortlisted, which included the Applicant and the 2nd Respondent. Only the 2nd Respondent was nominated by the panel for appointment on the basis that she was the only candidate who scored more than 50% during the interviews. Candidates who scored less than 50% were not eligible for nomination. The 2nd Respondent was appointed into the post effective from 1 October 2021. The Applicant referred a dispute to the ELRC on 15 October 2021. A conciliation was scheduled on 12 November 2021, but was unresolved since the 2nd Respondent had not been joined yet in the proceedings, whereafter the dispute was referred to arbitration in March 2022.

10. The 2nd Respondent as the successful candidate joined the 1st Respondent in January 2012 teaching Grade R at the same school, with Persal number 82445257. She was appointed as a Post Level 1 Educator on 1 July 2018 in terms of the Employment of Educators Act 76 of 1998 (the EEA) to teach all Grade 2 Foundation Phase subjects, which post she occupied prior to her appointment in the advertised post. Collective Agreement 1 of 2019 governs the appointment of promotional posts.

The following facts were in dispute:

11. Whether the 2nd Respondent should not have been shortlisted because she did not meet the requirements of the post.

12. Whether the 1st Respondent had committed an unfair labour practice by appointing the 2nd Respondent, and not the Applicant, in the advertised post.
SURVEY OF EVIDENCE AND ARGUMENT

13. Only the Applicant, Ms Mapaseka Angela Tsibulane, testified under oath in support of her case. It is noted that the Applicant elected to present her own opening statement, evidence in chief and re-examination without the assistance of her SADTU Representative, who only assisted with the cross-examination of the Respondents’ witnesses.

14. Ms Refilwe Makoti, the successful candidate, and Mr Stanley Finger, Human Resource Officer, testified under oath for the 1st and 2nd Respondents.

15. Documents were handed in by the Applicant and the 1st Respondent and were admitted as evidence by all parties.

16. Only the evidence relevant to the facts in dispute are summarised below and that which was established as common cause is not repeated, unless relevant. Detail is provided, were relevant. Witnesses’ evidence in chief, under cross-examination and re-examination are summarised separately to assist with the evaluation of their evidence.

THE APPLICANT’S EVIDENCE

17. The Applicant party’s case was that the dispute was about an alleged unfair labour practice relating to promotion for a promotional post which was advertised in 2019. She and the 2nd Respondent both applied for the post but the 2nd Respondent did not meet the requirements of the post, which stated that three years’ experience and above was required to apply for a promotional post. The 2nd Respondent was only employed on 1 February 2018, hence she did not meet the three years’ requirement at the time of application. The advertised post was that of Departmental Head Post Level 2 at Tlotliso Primary School. She, the Applicant, currently occupied a Post Level 1 Educator position at the same school. She commenced employment with the Respondent on 14 March 1996. She viewed the 2nd Respondent’s appointment as unfair since the 2nd Respondent did not meet the requirements to apply for the post as stated in the Vacancy List. The appointment should be reversed in the circumstances.

18. Ms Mapaseka Angela Tsibulane, the Applicant, testified as follows under oath in her evidence in chief: The evidence that she had is that the 2nd Respondent was appointed on 1 February 2018 and had applied for the promotional post which was advertised on 7 October 2019. According to her knowledge when one applied for such a post one has to have three years’ experience plus in the mainstream and above. The mainstream was when one was appointed as a Teacher/Educator with the relevant qualification for Post Level 1. At the time that the 2nd Respondent applied for the post advertised on 7 October 2019 she only had one year and eight months’ experience as Post Level 1 Teacher. When the 2nd Respondent applied for the post in 2019 she was not shortlisted. NAPTOSA lodged a grievance at the time regarding the then appointed candidate after the first interviews and everything was put on hold and the process was redone again on 23 July 2021 by an independent panel in Bloemfontein. She and the 2nd Respondent were both shortlisted then, went for interviews and the 2nd Respondent was recommended and appointed in the post. Her dispute was not about the interviews and who got the highest marks/scores, but her point was that the 2nd Respondent did not possess the required experience of three years when she applied for the post. The 2nd Respondent should therefore not have been shortlisted and appointed in the post as she did not have the relevant experience for the post.

19. Ms Tsibulane testified as follows under cross-examination by the 1st Respondent: The 2nd Respondent was appointed on 1 February 2018. Both the 2nd Respondent and herself were not shortlisted during the first round. She did not know the reasons why she and the 2nd Respondent were not shortlisted in the first round, since it may have been the requirements of the panel. When the post was advertised in 2019 the 2nd Respondent was one year and eight months in the mainstream. When she and the 2nd Respondent were interviewed on 23 July 2021 the 2nd Respondent had three years’ experience with the 1st Respondent. This was not sufficient for the 2nd Respondent to be shortlisted since the applications were made in 2019. The old applications were used and considered, without any re-application. If the post was re-advertised with new applications the 2nd Respondent would have been eligible since she had three years’ experience in 2021 but the post was not re-advertised. The same curriculum vitae (CV’s) were used in the second round and none of them submitted new CV’s. She agreed that when the second panel sat the 2nd Respondent qualified to be shortlisted. When the first interviews were conducted and she herself was not shortlisted she had 25 years’ experience, with the 25 years’ experience still being there at the time of the second interviews according to her CV submitted in 2019. Her own experience was not the same when the second interviews were conducted. Although she had said that the 2nd Respondent had commenced service with the 1st Respondent in 2018, the 2nd Respondent had been in the system as a Practitioner since 2012 teaching Grade R, and not as an Educator. She was referred to the 2nd Respondent’s Persal report which indicated that she was always referred to as a Teacher before her appointment as Departmental Head. They were told that if one is teaching Grade R you are not Teachers or Educators but similar to teaching in a crèche and would still have a Persal number. In 2012 the 2nd Respondent was no teaching Grade 1 since she did not have relevant qualifications as in the mainstream and earned less than her, the Applicant. The qualification that the 2nd Respondent had in 2012 was not relevant when she was teaching Grade R. Three years’ relevant experience in the mainstream was required to apply for the Post Level 2 position as advertised. The relevant experience she referred to was stated in the Vacancy List and the Free State Chamber Collective Agreement 1 of 2019, with the minimum requirements set out in paragraph 4.7.3. With respect to educational qualifications she believed the minimum requirement is a REQV 13 Diploma. She only knew of the REQV 13 qualification relating to Education. She agreed that the only reason the 2nd Respondent was not shortlisted in 2020 was because she did not have three years’ experience, but agreed that she had the three years’ experience and qualified in 2021.

20. The 2nd Respondent confirmed that they would abide by the 1st Respondent’s cross-examination of the Applicant.

21. Ms Tsibulane testified as follows under her own re-examination: The Vacancy List was issued in 2019 and in 2021 when they went for interviews the 2nd Respondent had already had three years’ experience. She reiterated however that the post was not re-advertised and at the time of applying for the post the 2nd Respondent had not reached the three years’ experience. No new applications were received in the second round and the 1st Respondent used the same CV’s and relevant qualifications of 2019, with the same experience applying as at 2019 during the second round in 2021.

THE RESPONDENTS’ EVIDENCE

22. The 1st Respondent’s case was that the 2nd Respondent was properly appointed, was the best candidate in the interviews and also had the necessary experience, which was more than three years. The 2nd Respondent had nothing to add to the 1st Respondent’s submission.

23. Ms Refilwe Makoti, the 2nd Respondent as successful candidate, testified as follows under oath in her evidence in chief: She formally started working at Tlotliso Primary School in 2012. On 1 February 2018 she was appointed permanently as a Grade 2 Teacher/Educator. She was not shortlisted when the first round of interviews for the post were conducted, but could not remember the exact date and month and whether it was in 2019 or 2020 since it was a long time ago. She did not complain about not being shortlisted in 2020. At the time of the second round of shortlisting and interviews on 23 July 2021 she had already had three years’ and five months’ experience.

24. The 2nd Respondent elected not to cross-examine the 2nd Respondent since it was the 1st Respondent that they wanted to cross-examine.

25. Mr Stanley Finger testified as follows under oath in his evidence in chief: He held the position of Human Resource Officer in the Provision Section of the 1st Respondent, which deals with the appointments of staff. He worked on this case some time back and was the Scribe in setting up the independent panel in 2021. It only came to his attention now at short notice after the process was finalised last year and was surprised that the matter had been taken on review. He confirmed he was part of the team that oversaw the process of the independent panel in 2021. He thought that four or five candidates were shortlisted and four were interviewed. He was appointed as the Scribe who kept the minutes of the shortlisting and the interviews and submitted the recommendation to the Director. He did not have the benefit of the files with him but he recalled that the outcome of the processes held at the District Office was that the 2nd Respondent was the recommended candidate. He responded to the question regarding prescribed experience if a person is appointed in 2018 and the shortlisting is done in 2021 whether the date that would be looked at would be date the shortlisting is done or when the post (advertisement) is closed, that the date considered is when the shortlisting was done by the independent panel in 2021.

26. Mr Finger testified as follows under cross-examination: He was aware of the date of the advertisement (of 7 October 2019) when he was the Scribe and believed that the panel would also have been aware of that date. When they perused the CV’s of the candidates the experience of the 2nd Respondent was taken at the date of the sitting of the panel. He did not have the benefit of the file and the minutes with him but his recollection from the panel sitting was that a candidate would have qualified at the date of the shortlisting. As to whether the 2nd Respondent’s experience of three years and five months at the time of the interview was in line with the panel’s criterion of a minimum of five years for shortlisting, he responded that preliminary criteria are set by the panel but when they look through the CV’s of the candidates it may be found that the standard is set too high and it is then changed. The ideal criterion for appointment in a Departmental Head post is three years in terms of PAM (Personnel Administrative Measures). He did not know what transpired later when it is found that no one qualifies for five years. It was put to him that the 2nd Respondent ‘s CV was wrongly put in with all the CV’s if that was the criterion at shortlisting stage (of five years), but in his view the panel was wrong to initially put five years as a criterion when the minimum requirement for appointment as a Departmental Head is three years. He was not aware of the first process, only the second process which was referred to the independent panel. He could not speculate if there was a specific interest of a particular person to change the minimum requirement to three years for the process to continue, as it was an independent panel with no dealings as to what had transpired in the past. As to why the CV’s were brought back in the second process when persons were not shortlisted in the first process, the matter was adjudicated by the DPC (Dispute Prevention Committee) and the whole process was to be done afresh in 2021 to include all the candidates which had initially applied. He could not comment on why there was not a new advertisement for the same post so that people could apply since the experience that reflected on their CV’s was in 2019 and not 2021.

27. No cross-examination of the witness was required by the 2nd Respondent.

28. No re-examination of the witness was required by the 1st Respondent.

CLOSING ARGUMENT

29. Verbal closing arguments were presented by the parties as agreed to at the conclusion of the arbitration. These closing arguments are not repeated here for the sake of brevity, but have been referred to and taken into account in arriving at the award.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. I am required to determine, on the balance of probabilities and in the circumstances of this case, whether the 1st Respondent, the Department of Education: Free State Province, had committed an unfair labour practice relating to promotion by appointing Ms Refilwe Sharlote Makoti, the 2nd Respondent, into the advertised position of Post Level 2 Departmental Head at Tlotliso Primary School and not the Applicant, Ms Mapaseka Angela Tsibulane. Ms Makoti was joined in the proceedings as the 2nd Respondent due to her having a substantial interest in the subject matter of the proceedings.

31. The relevant provisions in terms of section 186 (2)(a) of the LRA are the following:

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

32. It is common cause that the Applicant currently occupies a Post Level 1 Educator position at Tlotliso Primary School, applied for the Post Level 2 Departmental Head position at the same school as advertised under Vacancy List 2 of 2019 dated 7 October 2019, was not shortlisted during the first recruitment and selection process of 2020 and was shortlisted and interviewed during July 2021 after the process was repeated under the auspices of a new and independent Interviewing Committee subsequent to an internal grievance having been lodged regarding the previous process. It is also common cause that the 2nd Respondent as the recommended and successful candidate was appointed into the post effective from 1 October 2021, was also not shortlisted during the first process and was only shortlisted and interviewed during the second process in July 2021, together with the Applicant.

33. The Applicant’s version and argument was that the 2nd Respondent did not meet the experience requirements for the advertised position of Departmental Head, since she had only been employed in a Post Level 1 Educator position since 1 February 2018 at the time that she applied for the advertised post in October 2019 and had not met the experience requirement of three years as an Educator at that time to be eligible for shortlisting in 2019. Her previous experience at Grade R was not regarded as relevant as applicable to an Educator in terms of the EEA. However, when the process was repeated by the independent panel in 2020 after the grievance was lodged by NAPTOSA, the 1st Respondent had not re-advertised the post and requested new applications, but instead considered the CV’s and original applications that there submitted in 2019. Since the 2nd Respondent had not been eligible in terms of years’ experience in that first round of the process in 2020, based on that original application and the criteria that applied then, she would still not have been eligible for shortlisting, interviewing, recommendation and appointment during the second round in 2021. The Applicant was not taking issue against the 2nd Respondent in person, but against the injustices committed by the 1st Respondent, who shortlisted somebody who should not have been shortlisted, requesting that the whole process be reversed and repeated so that justice can prevail. The independent panel in the second round failed to realise that someone was shortlisted who did not meet the experience threshold, with only the shortlisting, and not the interviewing process, being disputed.

34. The 1st Respondent’s version and argument on behalf of both Respondents was that the independent panel in the second round considered the original CV’s and experience of the candidates as at the time when the shortlisting, interviewing and selection process was repeated in 2021, and not what had applied at the time when the original applications were submitted in 2019. This was also supported by their witness who was party to the second process conducted by the independent panel. The Applicant had in fact benefited from the second process since she was not shortlisted during the first process. The Persal report showed that the 2nd Respondent was titled a Teacher since 2012 and not as a Practitioner. For the period from 2018 until when the interviews were conducted in 2021 the 2nd Respondent had acquired the necessary experience. Between the interviews and the appointment, the issue of the shortlisting was never raised and it was only raised after the 2nd Respondent was appointed. Their submission was that the application should be dismissed in this arbitration.

35. In essence I am required to decide whether the 1st Respondent had committed an unfair labour practice by shortlisting the 2nd Respondent in the second round of the interviewing and selection process for the advertised post, as a result of which a recommendation and an appointment was made.

36. It is noted that neither party had raised the best interests of the child in their submissions, which I am nevertheless still required to consider in any determination that is made in these proceedings. The best interests of the child relate to the prescript that the child must be considered before a decision affecting his or her life is made, as provided for in section 28(2) of the Constitution of South Africa –Bill of Rights which at section 28(2) states that - “A child’s best interests are of paramount importance in every matter concerning the child” with a “child” meaning a person under the age of 18 years, as well as section 8 of the Children’s Act 38 of 2005 (the CA). Even if this was not pertinently raised by a party in an arbitration, which it has not been in this case, I would have been obliged to consider the best interests of the child in arriving at the appropriate award. Prof Adriaan van der Walt in a paper titled The Principle of the Best Interests of the South African Child delivered on 9 September 2016 states as follows: “Taking into account that section 28(2) constitutes a right, all organs of state must respect, protect, promote and fulfil the best interest of a child or children in general”. Section 8 of the CA also provides as follows: “In all matters concerning the care, protection and well-being of the child the standard of the child’s best interests is of paramount importance and must be applied.” By stating that the child’s best interests are of paramount importance it means that they can trump the rights and interests of persons older than 18 years of age. Van der Walt continues to define the best interests of the child as follows: “Basic interests, for example [in] physical, emotional and intellectual care; developmental interests [in entering] adulthood as far [as] possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own. “

37. The position that the best interests of the child is paramount finds support in the Constitutional Court judgement in Governing Body of the Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC) in which it was held that section 28(2) of the Constitution of the Republic of South Africa imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions.

38. The following was noted further from the documents handed in and admitted as evidence by the parties:

39. The minutes of the shortlisting process conducted on 14 July 2021 for the post state that the initial criterion decided by the independent panel was that candidates should have been teaching in a Primary of Combined School for a minimum of five consecutive years. At that stage both the Applicant and the 2nd Respondent were included in the shortlist for interviewing on the basis of the criterion of teaching experience, which Mr Finger the Respondent’s witness testified was higher than the minimum requirement of three years’ experience required for appointment in a Departmental Head post, and which could subsequently have been reviewed and changed by the panel. From the minutes of the shortlisting process meeting of 14 July 2021 it was noted that Applicant ranked higher than the 2nd Respondent at a score of 67% whilst the 2nd Respondent ranked below her at a score of 57%. The 2nd Respondent however performed better in the interviewing process, scoring the highest at 64% of all the candidates interviewed. It is noted that the date that the motivation to recommend the 2nd Respondent was signed by the Chairperson of the Independent Panel (Interviewing Committee) was 23 March 2021, which must have been an obvious error as the other related document was signed on 23 July 2021.

40. The motivation for appointment in the post of Departmental Head at Tlotliso Primary School referred to the PAM requirement for Post Level 2 of three years’ experience as well as a recognised three or four year qualification obtained after Grade 12, including a teaching qualification, and confirmed that the recommended candidate, being the 2nd Respondent, complied with these requirements, which was subsequently approved by the District Director on 20 September 2021.

41. The Collective Agreement titled Free State Chamber Collective Agreement 1 of 2019 18 January 2019 Guidelines for Advertising and Filling of Educator Posts at Institutions, was referred to by the Applicant, with specific reference to paragraph 4.7.3 under 4.7 below:

4.7 In considering the applications, the Interview Committee must ensure that the principles of equity, redress and representivity are complied with and they must adhere to: (Section 6(b) (i- v) EEA).
4.7.1 The democratic values and principles referred to in paragraph B.5.1.1.1.
4.7.2 The procedures stipulated in paragraph B.5.
4.7.3 The minimum requirements for appointment with regard to educational qualifications, statutory and experiential requirements stipulated in paragraph B.3.2.1.
4.7.4 Procedures that would ensure that the recommendation is not obtained through undue influence on the members of the SGB.

42. The Applicant had also provided an extract from the Vacancy List for the advertised post, which stated that the minimum experience for a Post Level 2 appointment is three years.


FINDING

43. I have considered all the evidence and argument presented, but because section 138(7) of the LRA requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute, with such findings made on the balance of probabilities. The following is accordingly found, on the balance of probabilities and in the circumstances of this case:

44. It was not disputed that the Applicant was employed longer than the 2nd Respondent as an Educator. That would however not automatically have qualified the Applicant as the most suitable candidate to be recommended for the post, since other criteria also applied.

45. Irregularities in the second round of the selection/interviewing process for the post were not alleged nor proven, other than the Applicant’s averment that the 2nd Respondent did not have the required experience at the time that the original application was made in October 2019, which should also have applied during the second round of shortlisting and interviewing in 2021.

46. If it is found that the recruitment and selection process applied by a Respondent in the Education Sector amounted to an unfair labour practice, the normal remedy would be for the process to be repeated from the shortlisting phase onwards by another panel not associated with the previous, allegedly flawed, process, so that the appropriate recommendation for appointment is made to the Head of Department of the Department of Education in the Province concerned.

47. In this case the process had already been repeated by another independent panel after the grievance was lodged by the union NAPTOSA, who were involved in the first process. It would therefore be superfluous to direct that the process be repeated again if unfairness is found in the current circumstances.

48. The main issue therefore remains whether the 1st Respondent had acted unfairly by not re-advertising the post after the first round failed and inviting new applications for the post, in the absence of which the applications and relevant experience of candidates as at the time of the first application in 2019 were considered in 2021.

49. It was common cause that both the Applicant and the 2nd Respondent were not shortlisted during the first round of the selection/interviewing process. At that time the Applicant, with her considerably longer experience, would have met the minimum requirement of three years’ experience for a Departmental Head post. Although both parties were not aware of what the reasons were that they were not shortlisted, other factors must have been considered why the Applicant was not shortlisted based on the criterion of service alone. The details of the first shortlisting and interviewing process were however not supplied as evidence in the proceedings to establish what had transpired on that occasion.

50. It was not in dispute that the candidates’ same CV’s, qualifications and experience, as had been submitted with their original applications in 2019, were considered in the second round during 2021.

51. It was also not in dispute that both the Applicant and the 2nd Respondent were shortlisted and interviewed during the second round, with the 2nd Respondent having been recommended as the preferred candidate by the new panel and subsequently appointed in the post. It is noted that the scoring of the candidates interviewed for the post, as contained in the admitted documents, reflected that the 2nd Respondent scored the highest at 64% during the interview process, with the Applicant scoring 31.3% as the second highest candidate, with the other candidates all scoring below the threshold of 50%, as confirmed by the Chairperson of the Interviewing Committee (independent panel) on 21 July 2021. The 2nd Respondent was also ranked as the most appointable candidate by the independent panel. It is noted further that SADTU, the attendant Union in the 2021 process and who also represented the Applicant in the arbitration proceedings, indicated in the documents on 23 July 2021 that they were satisfied with the selection procedures for both the shortlisting and interviewing sessions.

52. In such a scenario the new, independent panel, implying that they had no involvement nor interest in the previous process, had considered what was presented to them, being the original CV’s of all the candidates for shortlisting for interviews, at the time that the panel was established, which was in 2021.

53. The Applicant had conceded that as at 2021 the 2nd Respondent would have been eligible for shortlisting for the post based on her years of experience.

54. Mr Finger, the 1st Respondent’s witness, who was the Scribe and party to the second process, also confirmed that the independent panel would have considered the candidates’ applications and CV’s at the time that the panel was convened.

55. If, in the Applicant’s version and argument, the post should have been re-advertised and new applications submitted, it would conceivably have made no material difference to the new panel’s deliberations, since these would still have been based on when the panel was convened to consider and make their recommendations, and not what had transpired previously.

56. It is also not in the best interest of the child learners at Tlotliso Primary School that their education be compromised due to further delays in confirming the appointment of a Departmental Head, and it is recommended that Educators set their other differences aside to focus on the learners entrusted to them and their wellbeing.

57. In the circumstances I therefore find that the 1st Respondent had not committed an unfair labour practice by appointing the 2nd Respondent in the advertised post of Departmental Head at Tlotliso Primary School.

AWARD

58. The 1st Respondent had not committed an unfair labour practice relating to promotion with respect to the appointment of the Departmental Head Post Level 2 at Tlotliso Primary School.

59. The application is accordingly dismissed.

60. No order as to costs is made.


Panelist: Alta Reynolds







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