ELRC840-21/22LP

Commissioner: T Mathekga
Case No.: ELRC840-21/22LP
Date of Award: 04 November 2022

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN Polokwane on the 20 September and 26 October 2022

In the matter between: -

SADTU obo Rangwato Kedibone, Victoria Applicant

And

Limpopo Department of Education First Respondent

Ledwaba PJ Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held in Polokwane on the 20 September and 26 October 2022. The Applicant was represented by Mr. Thobja Monyai from the South African Democratic Teachers Union (“SADTU”) whereas the respondent was represented by Mr. Nyathela R.E, who is employed by respondent as the Deputy Director responsible for Labour Relations.
2. Both parties submitted bundles of documents which were admitted as evidence and were marked as “R1” and “A1” for the Respondent and the Applicant respectively. Bundle “R1” contained some 89 pages, while bundle “A1” contained 75 pages.
3. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments on the Thursday, 03 November 2022. The Applicant submitted the written closing arguments, which have been taken into consideration in arriving at the conclusions herein.

THE ISSUE IN DISPUTE

4. The issue in dispute to be determined is whether the Head of Department properly exercised her discretion and/or conduct by appointing the 3rd choice preferred candidate over the 2nd choice preferred candidate, and whether such discretion and/or conduct constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

5. The Respondent advertised the position of Deputy Principal under circular No.2 Volume 2/2021. Subsequently, the School Governing Body (“SGB”) recommended for appointment a certain Mr. Ramohlale as the first (1st) choice preferred candidate, and Ms. Ranagwato K. V, the Applicant in this case, as the second (2nd) preferred candidate, and lastly, Ms. Ledwaba P. J as the third (3rd) preferred candidate.
6. It is common cause that Mr. Ramohlale declined the appointment, and the Head of Department exercised her discretion to appoint the incumbent, Ms. Ledwaba P. J despite her being ranked number three (3) preferred choice by the SGB. The Applicant, being dissatisfied with her non-appointment and/or promotion to the position of the Deputy Principal, referred an unfair labour practice to the Council for arbitration.
7. The arbitration was then set down for the 20 September and 26 October 2022 before me, and the matter was digitally recorded. Ms. Ledwaba PJ was cited as the Second Respondent, and attended the proceedings, but chose not to participate by either adducing evidence and/or cross-examining the Applicant.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

8. Ms. Rangwato K.V testified under oath, and her evidence can be summarized briefly as follows. That she applied for the vacant position of the Deputy Principal for Motsofala Primary School, and that she was subsequently shortlisted and interviewed for same by the SGB wherein she was recommended for appointment as the second (2nd) choice preferred candidate.
9. Further, she testified that despite being the most suitably qualified and experienced comparatively speaking to Ms. Ledwaba P.J, and having ranked higher in the interview scoring by the SGB, she was not appointed and/or promoted to the position of the Deputy Principal.
10. Further, she testified that she was scored higher at 69% compared to 68.5% of Ms. Ledwaba PJ, the incumbent.
11. The Applicant testified further that she has higher qualifications than Ms. Ledwaba P.J, in that she holds two (2) Honours degrees in Management and Maths Education, and that she is the most experienced than the incumbent, having previously held the positions of departmental head and Principal between the year 2006 and 2016.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

12. The Respondent’s first and only witness, Ms. Sebake K.E, testified under oath, and her evidence can be summarized briefly as follows. That she holds the position of Deputy Director responsible for corporate services, which includes human resources amongst other responsibilities.
13. Ms. Sebake testified that amongst her responsibilities, is to do quality check on candidates, and recommend for approval to the District Director.
14. Ms. Sebake further testified that the Applicant was not recommended for appointment and/or promotion because she was previously appointed as the Principal, and resigned that position without giving reasons for her resignation.
15. She further testified that the incumbent, Ms. Ledwaba P.J was recommended for appointment because the difference in scoring between the two applicants were minimal, and that the appointment of Ms. Ledwaba P.J was in the interest of learners in that it promoted stability in the school as the incumbent was already working in the same circuit.
16. Ms. Sebake testified further that the appointment of Ms. Ledwaba P.J was to motivate learners and the staff.
17. Ms. Sebake testified further that all the candidates met the minimum requirements, and that the Head of Department (“HOD”) considered all the candidates that were recommended by the SGB before exercising her discretion to appoint the incumbent.


ANALYSIS OF EVIDENCE AND ARGUMENT

18. The parties narrowed the disputes and reduced same into writing through the signed pre arbitration minute. Per the pre arbitration minute, I am called upon to determine “whether the Head of Department exercised her discretion properly by appointing the third (3rd) choice preferred candidate over the second (2nd) choice candidate”.
19. In this case, it is common cause that both the incumbent, Ms. Ledwaba P.J and the Applicant, Ms. Rangwato K.V, met the minimum requirements in terms of qualifications and experience for the appointment to the position of the Deputy Principal. What distinguished the two, if any, is the scores during interviews. Ms. Rangwato K.V was scored at 69%, while Ms. Ledwaba P.J was scored at 68.5 by the SGB.
20. Further, the same SGB ranked the applicants by way of preference for appointment. It is common cause that the SGB recommended Mr. Ramohlale as the first (1st) choice preferred candidate, then followed by Ms. Rangwato and Ms. Ledwaba at positions two (2) and three (3) respectively.
21. It is also common cause that Mr. Ramohlale subsequently declined the position, and then the HOD appointed Ms. Ledwaba, the third choice preferred candidate by the SGB.
22. The Applicant complains that such conduct constituted an unfair labour practice in that she was unfairly denied promotion, and that such conduct or discretion was unfair, while the Respondent contends that the conduct is fair in that the HOD exercised her discretion by appointing the candidate of their choice for reasons that I will deal with later in the award.
23. Page 67 of R1 bundle contained a recommendation from the Assistant Director responsible for Human Resource Management Provisioning, who recommended that Ms. Rangwato be considered for appointment as the Deputy Principal. This recommendation was directed at the Deputy Director responsible for Corporate Services for further inputs and recommendation. The Deputy Director for Corporates Services, did not support the appointment of Ms. Rangwato. In her recommendation to the District Director, she noted the following in her disapproval of the appointment of Ms. Rangwato, “the appointment i.r.o Rangwato K.V is not supported, he/she was once a principal in Limpopo and now a departmental head in Gauteng. He/she scored 69% and her successor scored 68.9% and in the same circuit of advertised post. Therefore, to improve the moral of the workers, Ledwaba P.J is supported for approval”.
24. Thereafter, the District Director commented that the “appointment of Ledwaba PJ is approved. Ledwaba P.J is equally competent because she performed at 68.5”.
25. It is now trite that in labour law jurisprudence employers enjoy the prerogative to employ employees of their choice, and such prerogative should not easily be interfered with unless such prerogative is contaminated with arbitrariness, irrationality, unfairness and was in bad faith.
26. Ms. Sebake, who made the recommendation in support of Ms. Ledwaba P.J, testified for the Respondent under oath, and in the main, her reasons for not supporting the appointment of Ms. Rangwato were that Ms. Rangwato was once appointed as the Principal, and she resigned that position without giving reasons, and further that her re-appointment to the position of Deputy Principal will not be in the interest of learners.
27. I now deal with the reasons advanced by Ms. Sebake in support of the incumbent, Ms. Ledwaba. Ms. Sebake testified that the appointment of Ms. Ledwaba was in the interests of learners and staff, and argued that the appointment of Ms. Rangwato, on the contrary, will not be in the interests of learners.
28. For this proposition, Ms. Sebake went in great lengths to argue that for continuity, to encourage learners and teachers, she supported the appointment of Ms. Ledwaba. However, what is missing from the testimony of Ms. Sebake, is how exactly is the appointment of Ms. Rangwato not in the interest of the learners. Ms. Rangwato is equally qualified and performed higher than the incumbent in the interviews, had more managerial experience than the incumbent.
29. Further than that, she has more qualifications than the incumbent. I am therefore not persuaded by the reasons advanced by Ms. Sebake. In any event, the reasons advanced by Ms. Sebake in her testimony, are not the same as her recommendations at the time she recommended and supported Ms. Ledwaba. In her recommendation of 13 January 2022, in the main, her reasons for not supporting Ms. Rangwato was that she was once a principal in Limpopo Province, and at the time of recommendation, a departmental head in Gauteng Province.
30. These two reasons, in my view, explain her thought process at the time. In my view, the reasons advanced during an arbitration process are an afterthought to conceal the real reasons why Ms. Sebake did not support the appointment of Ms. Rangwato.
31. Mr. Monyai for the Applicant referred me to section 6(3) of the Employment of Educators Act which reads as follows:
“(b)The Head of department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-
(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed
(ii)the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators
(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence
(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1) of the Act
(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department”.
32. Section 6(3 b and c of the Act are relevant to assess whether the discretion of the HOD was properly exercised in the appointment of the incumbent, wherein the SGB preferred the appointment of Ms. Rangwato as the second best candidate. At the outset, the HOD, or Ms. Sebake, did not rely nor reflect on any reasons listed under section 6(3) b and c of the Act. Section 6(3) c provides that that if the HOD declines a recommendation, the SGB should make another recommendation. In this case, the SGB recommended three candidates for appointment, ranked in order of preference. Ms. Rangwato was the preferred candidate after Mr. Ramohlale who declined the appointment.
33. Having considered all the evidence before me, more so the reasons advanced for the appointment of the incumbent, and the reasons advanced for not supporting Ms. Rangwato, I am of the view that the HOD and/or District Director either did not apply her mind properly, or that she did not exercise the discretion properly. In the circumstances, I find the reasons for the non-appointment of Ms. Rangwato arbitrary, irrational and in bad faith.
34. Ms. Sebake repeated in her evidence-in-chief as well as in cross examination that she did not support the appointment of Ms. Rangwato because she was once the school principal in Limpopo Province, and resigned without giving reasons. Ms. Rangwato may well have resigned without giving reasons, but that should not play a role wherein the same Respondent shortlisted her, and interviewed her, and such a previous resignation only becomes an issue for the purpose of appointment.
35. The question is whether that conduct of the employer is enough to warrant interference with the prerogative of the employer to appoint a candidate of their choice? In my view, yes. The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides. The reason not to appoint Ms. Rangwato are irrational in that they are not founded on any policy, collective agreements or even legislation. That she once resigned without giving reasons, in my view, is a personal opinion of Ms. Sebake, and such a personal opinion or view should not be elevated to a policy position.
36. It is trite that in unfair labour practice dispute the onus is on the Applicant to prove their case on a balance of probabilities. I am satisfied that the Applicant proved their case on a balance of probabilities, and that the non-appointment and/or promotion of Ms. Rangwato was substantively unfair.
37. I therefore find that the Respondent committed an unfair labour practice towards the Applicant.
38. Clause 56 of Collective Agreement 3 of 2016 (“CA”) - ELRC Guidelines: Promotion Arbitrations, provides that “before granting any relief, the arbitrator must consider the effect that the relief that he or she intends to award, is likely to have on the school, the education department, and the learners”.
39. Further, clause 58 of the CA provides that “only where an employee has proved that he/she was the best of all candidates who applied for the post and that he/she would therefore have been appointed, had it not been for unfair conduct of the employer, will there be substantive unfairness and may the arbitrator grant substantive relief”.
40. Clause 56 and 58 of the CA are instructive to arbitrators in determining a fair and equitable relief. I have already found that the Respondent’s refusal to promote Ms. Rangwato was substantively unfair. Section 58 requires that the Applicant be the best of all candidates who applied for the post. This is in my view, an unreasonable impediment to the Applicants who are able to prove substantive unfairness but for a near impossible task of showing that they were the best of all candidates that applied. Further, there is no evidence before me that the Applicant was the best of all candidates that applied, neither there is evidence that she was not. The evidence before, however, proved that she was the best of the two candidates that were recommended by SGB at position two (2) and three (3). I therefore intend to appoint Ms. Rangwato to the position of Deputy Principal.

AWARD

41. I make a declaratory order that the appointment and/or promotion of the incumbent, Ms. Ledwaba P.J was arbitrary, irrational and unreasonable.
42. The promotion of Ms. Ledwaba P.J is set aside effective on the 30 November 2022.
43. Ms. Rangwato K.V is appointed to the position of Deputy Principal at Motsofala Primary School from the 01 December 2022.

Thapelo Mathekga
(ELRC PANELIST)