ELRC949-21/22EC

Panellist: Khuduga Tlale
Case Reference No.: ELRC949-21/22EC
Date of award: 29 September 2022


In the matter between:


Julia Wisani Applicant

And

Department of Education – Eastern Cape 1st Respondent

Bantu Msindo 2nd Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Julia Wisani (“the Applicant”) and Department of Education – Eastern Cape (“the 1st Respondent”) and Mr. Bantu Msindo (“the 2nd Respondent”) was held on 05 August 2022 and concluded on 20 September 2022 at the 1st Respondent offices in Aliwal North. The Applicant appeared in person and Mr. FJ Nevi, SADTU shop steward represented her. Mr. PP Nkomana, Circuit Manager, represented the 1st Respondent and, Mr. M Mxolisi, SADTU member, represented the 2nd Respondent.

2. These proceedings were conducted in English and were digitally recorded. The parties agreed to submit the heads of argument in writing on Tuesday, 27 September 2022. They both submitted.

Issues to be decided

3. The issue in dispute is whether an unfair labour practice was committed against the Applicant when she was not promoted to the post vol 2 of 2021/413: Head of Department (PL2) at Ethembeni Secondary School.

Background to the dispute

4. The 1st Respondent advertised the position of a Head of Department (PL2) at Ethembeni Secondary School with post reference number vol 2 of 2021/413 with the closing date of the 13th August 2021. The Applicant occupied the position of an Educator (PL1) with teaching experience of thirty-two (32) years when she applied for the said position. She taught Life Science at grades 10-12 and Natural Science at grade 9. The 2nd Respondent occupied the position of an Educator (PL1) with teaching experience of nineteen (19) years when he applied for the said position. He taught Geography at grades 10-12; Social Sciences at grades 8-9 and Technology at grades 8-9.

5. The advertised position required the person with Geography, Life Science. The Applicant was only having Life Science not a Geography. The Applicant was having secondary teachers’ diploma and FED Management. The 2nd Respondent was having Diploma in Education (senior phase); Advanced Certificate in Education: Geography Education and Honours Bachelor of Education. The Applicant and the 2nd Respondent were shortlisted and interviewed for the said position. After the interviews the 2nd Respondent and the Applicant were ranked numbers 1 and 2 respectively. They were both recommended as the suitable candidates to be appointed for the said position. The 1st Respondent after receiving the recommendation from Ethembeni school governing body approved the promotion of the 2nd Respondent. The 2nd Respondent was promoted to the position of the Head of Department (PL2) at Ethembeni Secondary School with effect from 01 November 2021.

6. The Applicant referred an unfair labour practice dispute relating to promotion to the Council alleging that her non-promotion was procedurally and substantively unfair. She sought promotion with effect from 01 November 2021. The dispute was not resolved at conciliation and it was referred for an arbitration.

7. The parties submitted a bundle of documents and it were marked bundle “A”, “B”, “C”, “D” and “E”.

Survey of Evidence

Applicant

First Witness: Ms. Julia Wisani

8. The witness testified under oath that she was the Applicant in this matter. She stated that she specialized in Life Science and she qualified to teach in secondary school. The 2nd Respondent was having teachers’ qualification for senior phase and he was not qualified to teach at secondary school. The 2nd Respondent qualified to teach Geography for grades 7-9 not grades 10-12. The 2nd Respondent was not having Life Science.

9. Both of them were only having one subject not two subjects as per the advertisement. She qualified to be promoted to the said position rather than the 2nd Respondent. The 2nd Respondent was placed at the school to teach grades 10-12 even though he did not qualify. She had no knowledge why the 2nd Respondent was allowed to teach those grades.

1st Respondent

10. Under cross-examination she confirmed that she only had Life Science for grades 10-12. She wanted to know the reason why she was not promoted. The 1st Respondent overlooked her when this position was filled. The promotion of the 2nd Respondent was predetermined when he was placed to teach Geography at grade12 even though there were other educators who qualified to teach that subject. The 2nd Respondent was the only available educator to teach Geography at that time.

2nd Respondent

11. Under cross-examination she stated that the advertised position required a candidates with Life Science; Geography. She maintained that the position required the candidates with Life Science or Geography. According to her understanding the word coma (,) means or. The 2nd Respondent majored in Biology and Geography for senior phase. She confirmed that the 2nd Respondent did not study Social Sciences as per “D3”.

12. She confirmed that she had no Geography as a subject. She had the interest in the 2nd Respondent qualifications because she wanted to be promoted to the said position. She stated that the 2nd Respondent was allocated to teach Geography at grade 12 because he was the only educator to teach it.

13. Under re-examination she stated that the 2nd Respondent had no secondary teachers’ diploma.

14. Under clarity questions she stated that she qualified to be promoted to the said position because she had secondary teachers’ qualifications. She confirmed that she was shortlisted and interviewed for the said position because of her qualifications and experience. She had no problem with the interviews processes. She later said her qualifications were not considered. The 1st Respondent was not supposed to shortlist, interview and promote the 2nd Respondent.

Applicant

15. She stated that the unfairness started during the shortlisting processes because she was the only candidate to be promoted.

1st and 2nd Respondents

16. Both the 1st and 2nd Respondent representatives stated that they were not going to led evidence. They were warned about their decision and its implication but they maintained that they were not going to lead any evidence.

Survey of Arguments

Applicant

17. The Applicant representative stated that the Applicant was challenging the sifting process and the ultimate promotion of the incumbent, who did not meet the requirements of the position. The 2nd Respondent mentioned in his application that he possesses a Secondary Teachers’ Diploma, which he does not have. The certificate he ultimately produced proved that he only has a Senior Phase Diploma, which in terms of Department of Education Policy allows him to teach from grade 7 to 9.

18. The 2nd Respondent falsely claimed in the proceedings that his Senior Phase Diploma was a Secondary Teachers’ qualification. The 1st Respondent through the school management team had maliciously and purposefully placed the 2nd Respondent in grade 12 in order to claim that he had taught on the phase. The evidence the Applicant had adduced proven that she was overlooked and was ranked the second best, whilst she was better qualified than the 2nd Respondent. The 2nd Respondent’s appointment be reversed and set aside and the Applicant be appointed to the position retrospectively.

1st Respondent

19. The 1st Respondent representative stated that the Respondent proved that there was no unfair labour practice in relation to promotion committed against the Applicant. The 2nd Respondent was having both subjects from the level of Matric, Diploma in Education as well as Geography at an Advance Certificate in Education level. The Applicant only had Life Sciences. The Applicant alleged that the 2nd Respondent was strategically placed to teach grade 12 to enable him to be promoted but she failed to substantiate her claim.

20. The question of unfairness that was alleged to have been directed towards the Applicant during the shortlisting processes was baseless, as she was shortlisted by the panel. The Applicant contradicted herself when she said that she had a problem with shortlisting processes but had no problem with interviews processes. Her allegations could not be substantiated, therefore, the 1st Respondent did not commit any unfair labour practice against the Applicant.

2nd Respondent

21. The 2nd Respondent representative stated that the Applicant failed to provide the proceedings with sufficient evidence of an unfair labour practice. There was no unfairness committed against the Applicant because she was shortlisted and interviewed for the said position.

Analysis of evidence and arguments

Introduction

22. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• 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 benefits to an employee.

23. The dispute before me relates to an alleged unfair conduct by the 1st Respondent relating to promotion. In a case of promotion, the onus is on the Applicant to prove that she was a suitable and better candidate for the position in question. In short, the Applicant has to demonstrate that the failure to promote was unfair. On the other hand, the 1st Respondent, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome.

24. The 2nd Respondent was joined as a party to the proceedings. Promotion is an area of managerial prerogative unless the Applicant can prove bad faith or improper motives were present which were neither alleged nor proved by the Applicant. It is not the panellist’s function or responsibility to choose the best candidate for promotion for the 1st Respondent but simply to ensure that in selecting candidates for promotion, the 1st Respondent does not act unfairly. All that the 1st Respondent was required to do in these proceedings were to show that it had a rational basis for its decision.

25. It is clear from the testimony of the Applicant that her complaint is two-fold. Firstly, she takes issue with the successful candidate being shortlisted as she alleges that he did not possess the relevant qualification. Secondly, she takes issue with the successful candidate for not meeting the inherent requirement for the post, which is both Life Science and Geography. It is therefore important to analyse these issues separately.

The shortlisting processes

26. The Applicant alleged that the 2nd Respondent qualifications were not relevant to teach at secondary school preferably grades 10-12. She further alleged that the 2nd Respondent qualifications allowed him to teach up to grade 9. Document “A2” where the advert of post 413 appears, there is no indication of the qualifications. The Minister of Basic Education published the revised Personnel Administrative Measures (“PAM”) in Government Gazette no. 39684 on 12 February 2016. The closing date for the said position was on 13 August 2021, therefore, the revised PAM was already in place when the application for the said position was closed. In terms of Chapter B.3.2.1.1(b) of PAM, the required qualification to be appointed to the departmental head position at the school is recognised three or four year qualification, which includes professional teacher education and an advanced knowledge of teaching as provided for in the professional qualification and three (3) years of actual teaching experience.

27. It is common cause that the 2nd Respondent is having a recognized three year teaching qualification and nineteen (19) years teaching experience. It is the Applicant’s case that teaching qualification for senior phase is not relevant to teach at secondary school preferably grades 10-12. Although on the face of it such argument may appear to be reasonable. Chapter B of the PAM does not states which teaching qualifications is recognised for teaching at primary or secondary.

28. In Minister of Police v SSBC & others JR2339/15 (LC) (delivered on 29 March 2018), it was held that it is not within the powers of an arbitrator to determine what relevant qualification is and what is not. Such is the task of an employer. Therefore, no relevant qualification was stated on the advertisement and no specific one is a requirement in terms of Chapter B of PAM. What is required is a recognised three or four year qualification, which includes professional teacher education of which the 2nd Respondent has. In terms of the issue of formal qualification and period of service, the 2nd Respondent met the requirement as per Chapter B.3.2.1.1(b) of PAM. Therefore, the attack on the formal qualification cannot stand.

Inherent requirements

29. It is common cause that the 2nd Respondent has Biology 3 and Geography 3 in his recognized teaching qualification. It is important to note that Biology is now called Life Science, therefore, the Applicant is having both Geography and Life Science. The Applicant failed to prove during the proceedings that the subjects of the 2nd Respondent is only up to grade 9, not for grades 10-12. The Applicant was required to provide the evidentiary prove to substantiate her claim in relations to the subjects against the 2nd Respondent but she failed to do so.

30. The Applicant unfairness case has a significant difficulty from the outset in trying to convince me that indeed the 1st Respondent played a critical role to deny her an opportunity for promotion in the advertised position. I considered her evidence during the proceedings so as to establish whether there was any undue interference by the 1st Respondent or the school management during the selection processes. I could not find any undue interference by the 1st Respondent and the school management during the selection processes.

Conclusion

31. The crux of the matter is that the Applicant has failed to substantiate her claims that she was subjected to unfair conduct by the 1st Respondent. In the circumstances, the Applicant has failed to prove that the 1st Respondent has committed an unfair labour practice in relation to the promotion.

Award

32. The Applicant, Ms. Julia Wisani, has failed to prove that the 1st Respondent has committed an unfair labour practice in terms of Section 186(2)(a) of the Act, in relation to promotion.

33. The application is dismissed.

Signature: 
Commissioner: Khuduga Tlale
Sector: Education