ELRC720-21/22EC

Case Number: ELRC720-21/22EC
Commissioner: Henk Jacobs
Date of Ruling: 19 September 2022

In the matter between


N Merile
(Applicant)

And

1st Department of Education – Eastern Cape, 2nd Mr M L Nkontso
(Respondent)

Union/Applicant’s representative:

Mr SS Zibi

Telephone: 043 642 1827
Telefax:
E-mail: sszattorneys@gmail.com

Respondent’s representative:
Respondent’s address: Mr T Tsheko

Telephone: 082 461 8250
Telefax:
E-mail: Toto.tsheko@edoe.gov.za

Details of hearing and representation

1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held Virtually on 06 April 2022, 06 June 2022 and face to face on 17 and 18 August 2022.

2 The applicant, Ms N Merile, was represented by Mr S. S. Zibi, an attorney from Zibi attorneys, the 1st respondent, the Education Department - Eastern Cape, was represented by Mr T Tsheko, a Senior Employment Relations Officer employed by the Respondent and the second Respondent, Mr M L Nkontso, was represented by Ms P N Padiso, an official from the SADTU during the proceedings.

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

4 Parties further agree to file heads of argument on 05 September 2022 after an application was submitted and granted however, parties filed heads of argument on 09 September 2022.


Issue to be decided

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

Background to the matter

7. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion to the Education Labour Relations Council after she applied a Principal Post at Bisho Primary School, as advertised in Bulletin Volume1 of 2021.

8. The Applicant is employed as a Post Level 1 educator at Bisho Primary School since September 2020. It was common cause that the Applicant applied for the post, the Applicant was not shortlisted.


9. The Applicant sought for the 2nd Respondents appointment be set aside and that she be appointed in the post of Principal, alternatively, the Applicant be awarded with a protective promotion effective from the date the 2nd Respondent resumed his duty as Principal.

Survey of submissions

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

Applicant’s evidence

11. The Applicant testified that she has been employed by the 1st Respondent for 27 years and has been teaching English as a subject. She is currently employed at Bisho Primary School where she is managing a classroom and is the Grade Head for the grade 1 class. When one is a Grade Head, you work closely with the HOD.

12. The Applicant further testified that she hold qualifications in Education Management and leads in various structures. The post she applied for was a Principal post at Post Level 4, with the requirements of English, Management, and Administration. The Applicant testified that she complied with the requirements of the post, she has been teaching English for 27 years and has done Management and Administration.

13. Page 27 of the bundle which is the shortlisting minutes states that the panel used criteria that was not part of the advert when they included 5 years management experience as an HOD or Deputy Principal. The Applicant testified that she was not shortlisted due to her not having management experience.

14. The interview minutes further reflects that the successful candidate only attempt to answer the interview questions, while the other candidates have complete answers.

15. Under cross-examination, the Applicants stated that during the shortlisting process, they should consider the standard criteria and thereafter they could add additional criteria above the standard criteria including management experience.

16. The Applicant further confirmed that she is qualified as a Junior Primary Teacher which is a foundation phase educator and is partly qualified to teach intermediate phase. The 2nd Respondent achieved the highest scores during the interview and that the interview minutes is not a true reflection of the interviews.

17. The Applicant also confirmed that a deputy principal fulfil more or less the same duties as a principal, she is aggrieved because she was not shortlisted, and her rights were violated. She does not have a qualification to teach intermediate phase.

Respondent’s evidence

18. Mr Gwelana testified that he was the School Governing Body Chairperson at the time and resigned due to health reasons. They were told that a bulletin was published for a principal post and that they should develop a management program for the school in conjunction with the Departments management plan.

19. They were provided training before by the Resource person prior to the shortlisting and interview phase. They developed their shortlisting criteria and there was no discrimination involved. No level 1 educator was shortlisted, and the majority of the applications were males. The post was for a principal which is the manager of the school, and they focussed on management experience and included experience in a post as HOD or Deputy Principal.

20. Ms Kalimashe testified that she is the circuit manager and resource person for the appointment of the 2nd Respondent. During the commencement of the proceedings, she would highlight the procedures to be followed to the panel and that they may add additional criteria to lift the bar.

21. The Applicant was not shortlisted due to her not having management experience, classroom management is not a qualifying criterion, one needs to be part of the management team. If an educator applies for a post he or she is not qualified to teach, they may no longer be appointed in such position they are not qualified to teach.

22. Under cross-examination, it was confirmed that there is no criteria for lifting the bar during shortlisting, as long as it is inline with the post requirements.

Analysis

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

24. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provisions of benefits to an employee”.

25. It is common cause that the Applicant challenge her exclusion from being shortlisted by the SGB for the post of Principal at Bisho Primary School. The only regulation that guides the process is the Personnel Administrative Measures (PAM).

26. The question to answer is, was the decision taken by the SGB to exclude the candidate for the post based on her not having any management experience in terms of an HOD or Deputy Principal post fair.

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

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

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

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

3.3 Shortlisting and interviews

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

28. It is evident that PAM is applicable to all educators and that it regulates the recruitment process applicable to educators. It is further common cause that the Applicant applied for the said post, she was sifted in by the employing department who forward her application to the interview committee. The Applicant in argument contests that she should not have been eliminated at such an early stage as she met all the teaching requirements. This is in dispute, the Respondent’s evidence was that the Applicant may only be appointed in terms of her qualification, which is foundation phase, and excludes intermediate phase.

29. The minutes of the meeting conducted by the interview committee in bundle B, indicates that the interview committee sets out the shortlisting criteria relevant to this dispute as follows:
“We need to be considerate of experience at least 0-5 holding deputy principal position/HOD as they are in par doing same duties.”

30. It is fact that the Applicant was excluded from being shortlisted based on her lack of management experience as an HOD or Deputy Principal. It is further fact that the Applicant is a level 1 educator qualified to teach foundation phase. The Applicants case is that the criteria used to eliminate her was unfair as it was additional criteria. The interview committee set the standard for shortlisting, they did not deviate from the minimum requirements as per the advert, they added additional criteria as they should have in terms of the PAM.

31. It cannot be argued that such criteria is discriminatory, capricious, unlawful and unfair, all candidates were treated equally using the same criteria for shortlisting. For it to be discriminatory, the grounds relied upon must be arbitrary and impact the human dignity of the Applicant, it must be a characteristic of the Applicant that cannot easily be changed, like for instance one’s gender, age and so forth. Management experience does not fall within a category of an arbitrary ground as one can simply apply for a post of HOD or Deputy Principal. It was further fact that no level one educator was shortlisted.

32. There is a direct nexus between the post of the Primary School Principal the Applicant applied for and management experience. It is common cause that the post of Principal is that of a manager responsible for managing the affairs of a school. Therefore, the criteria set cannot be seen as unlawful, nor unfair, and the Applicants claim must be dismissed.

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

34. The Applicant was correctly excluded from being shortlisted based on her experience. On that basis it cannot be said that the Applicant was prejudiced by being excluded and that the Respondent committed an unfair labour practice in doing so.

35. The Applicant further raised in arguments that the interview panel did not comply with the requirements in terms of how it was constituted. This was never the Applicants case and was merely an averment put under cross examination by the Applicants representative to the chairperson of the SGB. No evidence was presented in this regard.

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


Award

37. The Applicant, Ms N Merile, failed to establish that the Respondent, the Education Department -Eastern Cape committed an unfair labour practice in terms of section 186)2) of the LRA.

38. The Applicant is not entitled to any relief.

Signature:

Commissioner: Henk Jacobs