PSES717-19/20NW

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT POTCHEFSTROOM

ARBITRATION AWAD RENDERED

Case No. PSES717-19/20NW
Panellist: Shaku Landela
Date of Award: 09 November 2022

In the MATTER between:

Temanie L.F. APPLICANT

And

Department of Education and Sport Development–North West RESPONDENT

For the Applicant: Leon Freddy Tamanie, in person and unrepresented
For the 1ST Respondent: Mr Martin Keetile – Labour Relations Practitioner.
For the 2nd Respondent: Mrs Ferries, in person and unrepresented.

DETAILS OF HEARING AND REPRESENTATION
[1] This arbitration hearings took place over a period of eight scattered dates: 06 March 2020 arbitration could not proceed but Pre-Arb Minutes were concluded; 15 September 2020 via Zoom, the Applicant had connection challenges; 26 February 2021, Point In Limine in that the 2nd Respondent was not properly notified; 31 May 2021, the Applicant concluded his testimony and cross examination by both Respondents; 06 September 2021, Applicant’s witness could not testify due to the unavailability of an Afrikaans Interpreter; 21 February 2022, the 2nd Respondent was again not properly notified as well as the Applicant and his witness who could not attend as a result; 05 July 2022, arbitration could not proceed due to the 1st Respondent’s representative’s plea of unawareness of the date as he was working remotely; 11 July 2022, the Applicant’s witness testified and cross examined by the 1ST Respondent’s representative while the 2ND Respondent was absent; and on 31 August 2022 both Respondents were absent and the matter was finalised in default. All face-to-face proceedings were held at the Respondent’s Dr Kenneth Kaunda District Office at Teemane Building in Potchefstroom, North West.
[2] The Applicant, Leon Freddy Tamanie, represented himself while the 1ST Respondent, the Department of Education and Sport Development – North West, was initially represented by Martin Keetile, the Labour Relations Practitioner and the 2nd Respondent, Mrs V. Ferris, represented herself.
[3] On 31 August 2022 both the 1ST Respondent and the 2ND Respondent were absent and unrepresented. After a wait of more than 45 minutes I called the Council to establish if it were notified about the Respondents absence. Coincidentally the 1ST Respondent’s representative also called the Council and he informed the CMO that he completely forgot about the matter. I overheard their conversation and the CMO confirmed the same.
[4] The reason for failure to attend arbitration by the 1ST Respondent’s representative was not a valid one to stall proceedings from continuing and the 2ND Respondent’s absent was also not explained.
[5] Given the above, I was also satisfied that all parties were properly notified by the Council about this arbitration and I proceeded in default.
[6] The Applicant party had submitted a 9 page bundle of documents with 8 Annexures having different numbered paragraphs. The 1ST Respondent had submitted a 20 page bundle of documents attached with a 9 page Annexure A.
[7] Both parties were given an opportunity to study each other’s documents prior to 31 May 2021 and they both agreed that they purported to what they ought to be.
[8] Proceedings of this arbitration were digitally recorded and I kept hand written notes in the case file.
[9] Proceedings were conducted in English and Musa Myeza, interpreted the Afrikaans version of the Applicant’s Witness.


ISSUE/S TO BE DECIDED
[10] I am mandated to determine whether the conduct of the Respondent amounted to unfair labour practice related to promotion in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended).

BACKROUND TO THE DISPUTE
[11] The Applicant was engaged by the Respondent as Post Level 1 – Educator on 01 April 2010.
[12] At the time he lodged a dispute with the Respondent, the Applicant’s monthly basic salary rate was at R31 190.10.
[13] A Post Level 4 Post Level 4 -P4 (P/2019/731) principal post was advertised across a number of schools around the JB Marks Sub-District of the Respondent including Promosa Secondary School where the Applicant is currently serving as an Educator, was advertised and the Applicant applied for the post.

[14] The Applicant was however not shortlisted and he disputed the sifting process outcome.
[15] The District Review Panel (DRP) upheld the decision ‘Not to Sort List’ the Applicant by the Sifting Committee.
[16] The Applicant then escalated the matter to the ELRC for resolution of the dispute declared and he is seeking Compensation.

SURVEY OF EVIDENCE AND ARGUMENTS
31 May 2021
[17] The Applicant, Leon Freddy Tamanie, testified under oath and read what he refers to as his Truncated Background from his bundle of document from page one (1) to page nine (9) but I will attempt to reduce it to less than 9 pages without omitting relevant facts as follows:
[18] The Applicant has 26 years of uninterrupted service as a Post Level – 1 Educator of the Respondent at the time the dispute occurred.
[19] He had acted in the position of Head of Department for Afrikaans from 2015 to 2017.
[18] The Respondent advertised the position of Principal Post-Level 4 (the Post) in its Departmental Circular No.24 of 2019 (The Circular). After several amendments were made the closing date was eventually set on 22 June 2019 as per Annexure A1 of his bundle.
[19] The Post became vacant at Promosa Secondary School after Dr Mafisa was transferred to Tlokwe Secondary School in February 2017.
[20] It is the Applicant’s testimony that he was among 11 candidates who applied for the advertised “…every employee has a right not to be subjected to an unfair labour practice”.
[21] The Applicant further alleged that his Application is premised on the foundation that the Respondent subjected him to an unfair labour practice as defined by the LRA as:
“An unfair labour practice means an unfair act or omission that arises between an employer and an employee, involving…the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee”.
[22] The Applicant put it on record that he has no right to be automatically promoted but he is subjected to the requirements and selection policies and the collective agreements on the same, of the Respondent.

[23] The Applicant stated that all he pleaded for was fairness and objectivity in the process.

[24] The Applicant further referred to clause 8.7 in the Circular which states the following:
“All the advertisement are subject to amendments by the Department”.

[25] The Applicant further testified that the shortlisting panel under the auspices of Mr Shaun Williams met on Wednesday, October 2, 2019 to carry out the same process and shortlisted six (6) candidates from the eleven (11) applications for face to face interview. The Applicant stated that this was despite what the secular prescribed from circular 6.1 that:
“Short-listing must be manageable and should not consist of fewer than 3 candidates and should not exceed five (5) candidates per post”.
The Applicant then continued to say that in order to meet the stipulation detailed above the panel had to “formulate additional criteria” as empowered by clause 6.3 of the Circular to bring the number from eleven (11) to five (5). A supplementary criteria to the proviso was then adopted that all applicants who are post-level 2 and higher must be shortlisted for face to face interviews.
[26] It is the Applicant’s testimony that on the one hand, after an extra proviso was added, it eliminated him and brought the number down to six (6) candidates who met the criteria.
[27] The Applicant further said the shortlisting panel felt no reason to introduce further criteria to filter the number down to possibly four or three for it would still have been within what is allowed within the parameters of the Circular. He said there was no reason provided for the latter practice that the mandate 6.1 of the Circular was exceeded which read as follows:
“…and should not consist of fewer than 3 candidates and should not exceed five candidates per post”
[28] The Applicant quoted the phrase “should not” as emphatic and is even underlined to accentuate the important point.

[29] It is his testimony that he was left out of the running for the position as a result of the said proviso in the view of the shortlisting panel that he did not meet the amended criteria for the position.
[30] It is further the Applicant’s testimony that during grievance procedure he made an effort to get a response from the Respondent why this was the case, why the mandate of the Circular was exceeded, so that he could understand reasonableness of the decision but it drew a blank because the response he received had no explanation.
[31] It is further the Applicant’s testimony that he became aware of his exclusion from the face to face interview for the first time when a Mr Winton Louw, the Deputy Principal and fellow applicant (sic), by way of an announcement in the staff meeting congratulated all candidates for their selection for the same on Thursday, October 03, 2019, a day after the shortlisting. He further alleged that of course he was also shortlisted so he was in a way congratulating himself.
[32] It is also the Applicant’s submission that certain members of the Shortlisting Panel were biased against him singling out the Chairperson, Mr Williams as well as, Mr John Adams. He stated that Mr Adams had a tendency of speaking glibly about what it is that they were going to do in order to fill the vacant principal post and he will call a witness to testify on that. He further stated that Mr Adams did not keep what they planned under wraps that no post-level 1 Educator will be considered for the principal post. The Applicant then took the matter up with Mr Adams but he denied that it was going to be the case.
[33] The Applicant further stated that although he was greatly disappointed by the fact that he was not shortlisted, it was however not a complete surprise especially after he heard what the supplementary criteria was, that was introduced.
[34] The Applicant further stated that this matter could have been arrested earlier on had the Respondent acted when he first submitted the letter expressing his unhappiness, a grievance for not being shortlisted. However, the minutes of the Interview Panel as per Annexure A8 of the Applicant’s bundle show that Ms Sebolai, the Resource Person of the Respondent at the time, was in possession of the same letter and its contents. The Applicant further testified that the same complaint letter was not only with Mrs Sebolai because she had admitted that it was also in the possession of the then District Director for Dr Kenneth Kauda District, Mr Masooa.
[35] The Applicant further stated that instead of treating his letter and its contents with the curtesy, seriousness and urgency it deserved, Ms Sebolai dismissed it as a complaint and that the interview process must continue.
[36] The Applicant stated that in English, a complaint and a grievance is exactly the same synonym. He said he did not receive the curtesy of an acknowledgement to his grievance or complaint let alone a full response.
[37] It is the Applicant’s testimony that Ms Sebolai admitted that one of the panel members was implicated in the complaint but told them to stick to the confidentiality clause. Further the minutes of the Interview Panel show that a panel member did not deny the contents of letter and therefore remains uncontested.
[38] The Applicant then referred his grievance to the District Review Panel about the behaviour of the two SGB gentlemen. The Circular is very clear on the conduct and behaviour that is expected of a person in such a position as a member of the Shortlisting Panel even in the supplementary criteria (6.9) the following is expected:
“The criteria used must be fair, non-discriminatory and in keeping with the constitution of the country”.
[39] The Applicant further testified that it was predetermined long before the shortlist panel met that the extra criterion would be formulated in that way. He stated that the clear intension was to keep him out. As a responsible educator who takes his responsibilities seriously and who cares about the direction the school is taking, he generally expresses his views with respect, openly and without fear or favour. It is his submission that this has brought him in contention with many members from the District Office. He stated that he is perceived as always a having a problem with everything and is never satisfied. This has been said to him by among others, Ms Sebolai, the Circuit Manager of the Respondent who was also the Resource Person during the shortlisting and interview processes.
[40] The Applicant stated that regardless of what a select number of people in management and educators at the school and at the department, of what their personal or professional views might be about him, he believes that it is still expected of them to comply with the Circular and be treated in line with it and the labour laws of his beloved country.
[41] The Applicant stated that he is therefore convinced that he has been prejudiced in that what is in his Curriculum Vitae or Precis Career that he had two or three years of experience on post-level 2 was overlooked. He cited an example that he acted as Afrikaans Head of Department (HOD) for two (2) without being remunerated for it. He referred to Annexure A7 of his bundle.
[42] The Applicant submitted that the supplementary criteria was a deviation from what is prescribed by Circular. He said in the past positions for post-level 4 were reserved for candidates who are on post-level 2 and above which the National Department of Basic Education has done away with that stipulation. This was done for the good reason to allow more educators an equal opportunity to apply for such posts. This specific criteria criterion is a regression going back to something that was deliberately dropped from the criteria.
[43] The Applicant further testified that the empowering clause for shortlisting panels to supplement criteria is found in clause 6.3 of the Circular. In clause 6.4 of same it says or gives guidance on what this supplementary criterion must be premised on:
“A list appropriately weighted indicators should be arrived at sing information provided in the advertisement (as well as duties, skills and qualities that are relevant to the post as a basis)”
[44] It is the Applicant’s further testimony that the Interviewing Panel took the easy way out, which they falsely believe will eliminate him from the contest and did not apply its mind to this clause in the Circular.
[45] The Applicant suggested that it is for the same reason that the panel stopped at the introduction of the said criteria because it could not introduce any other thus they exceeded the number of shortlisted prescribed by the Circular, which they are not empowered to do so.
[46] The Applicant stated that it is not clear who approved this breach of the Circular, if indeed it was approved but he attempted to seek clarity and he was not provided with any and no reason was provided for its approval.
[47] It is the Applicants submission that the law states that every administrative decision must be with reason and must be for a fair reason. He also referred to section 4 of the Employment Equity Act (the Equity Act) and said the North West Department of Education, as the employer, must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy practice. The Employment Equity Act defines a suitably qualified individual as having one or a combination of the following:
47.1 A formal qualification;
47.2 prior learning;
47.3 Relevant experience; and
47.4 capacity to acquire within a reasonable time the ability to do the job.

[48] The Applicant further stated that with the above been said, an employer only needed to shortlist and interview candidates who met the requirements of being suitably qualified.
[49] The Applicant concluded by making reference to a Labour Appeals Court judgement in Noonan v Safety and Security Sector Bargaining Council and others [2021] 33 ILJ 2597 (LAC), where the Court held that there is no right to promotion, but only a right to be given an opportunity to compete for a post. Any conduct that denies an employee an opportunity constitutes and unfair labour practice.
NB! The Applicant was cross examined by the 1st Respondent’s representative, Mr Martin Keetile and the 2nd Respondent, Mrs V. Ferris.
The Applicant’s Witness’s Testimony
[50] The Applicant called his only witness, Mr John McDonel, who testified under oath to the following:
[51] Mr McDonel stated that the School Governing Body called upon Mr Adams, Mr Williams, himself and four experts to be on the Shortlisting and Interview Panel.
[52] The witness further stated that Mr Adams and Mr Williams had previous experience in conducting interviews in 2016 whereas his was a maiden on one. He further alleged that he was never inducted as to the role he was expected to play while serving in the panel.
[53] The witness testified that Mr Adams, Mr Williams and himself went to Mr Barrel, the Deputy Principal who was acting in the principal post at that time, to discuss a certain criteria to be used by the panel as follows:
(a) There should be four experts in the Interview Panel;
(b) Because the witness was working at the North West University – Potchefstroom Campus he would maybe get two professors or former principals;
(c) the witness managed to get Dr De Vos, as well as, Mr De Beer who both agreed to serve in the panel; and
(d) two other experts who were coming from Klerksdorp, who worked in the interviews back in 2016, were Mr Abdool and Mr Alexander.
[54] It is the Witness’s testimony that the other criteria they decided to use was to cut off Post Level-1 Candidates from the race of shortlisting for the principal post. The criteria introduced was that from Post-Level 2 Educators and above should be shortlisted for the Principal Post.
[55] The witness stated that the latter criteria was suggested by Mr Barrel who also said that there was a person who has been applying perpetually since 2016 and would need experts to be part of the panel. He further said he would provide petrol to go to Klerksdorp to source the 2 expects from there. Mr Adams, Mr Williams and the witness went to Klerksdorp and found the two experts, Mr Abdool and Mr Alexander, waiting for them.
[56] The witness also testified that the criteria was explained to the experts by Mr Adams who also said that there was a person who had been consistently applying for the principal post since 2016 referring to the Applicant, and that he is Post-Level 1 Educator. The witness further stated that Adams told the experts that Mr Barrel was not prepared to work under a PL-1 Educator and in this instance he was referring to Mr Temanie, the Applicant.
[57] It is further the testimony of the witness that Mr Abdool’s response was that he was appointed from a Post Level – 1 Educator to a Principal Post in Klerksdorp and he saw nothing wrong in that.
[58] It is the testimony of the witness that Mr Adams response to Mr Abdool was that such an appointment will not happen at Promosa Secondary School.
[59] The witness sated that apart from PL-2 criteria no other criteria was then used. There were about eight (8) applicants for the post but two (2) where out, Mr Temanie and Mr Weyers.
[60] The witness also stated that Dr de Vos was having Mr Temanie’s Curriculum Vitae (CV) and asked the panel that because of Mr Temanie’s 20 years of Teaching Experience and 2 years acting as HOD and his qualifications surpasses those that have been shortlisted, if there was no possibility to shortlist him. Mr Alexander then responded by grabbing Mr Temanie’s CV from Dr de Vos and throw it on the floor and said that is a PL-1 and must fall off.
[61] The panel then ended up with a total of six (6) candidates shortlisted.
[62] The witness further testified that he was aware that the Circular prescribed that there should not be more than five (5) candidates or less than three (3) shortlisted and now six candidates where shortlisted. He also stated that he heard Dr de Vos saying that a motivation letter would be written to the Department for exceeding the number of candidates as per the Circular.
[63] It is further the testimony of the witness that there was no other criteria used to reduce the numbers from six to five candidates or to three candidates.

The witness was cross examined by the 1st Respondent’s representative Mr Keetile while the 2nd Respondent, Veronica Rochelle Ferris, was absent and unrepresented.

The Applicant closed its case.

ANALYSIS OF EVIDENCE AND ARGUMENTS
[64] Section 186 2(a) of the Labour Relations Act 66 of 1995 (as amended), provides the meaning of unfair labour practice as any unfair act or omission that arises between an employer and an employee involving—
(a) 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 provision of benefits to an employee
[65] This dispute falls within the parameters of the above authority.
[66] In Ncane v SSSBC and others DA 27/15 [2017] ZALAC 1; (2017) 38 ILJ 907 (LAC); [2017] 4 BLLR 350 (LAC) (handed down on 10 January 2017), the Court noted that the purpose of promoting an Employee is usually because the Employer’s organisation has a vacancy for a person to perform a particular task and candidates for promotion are Employees functioning at a lower level who possibly have the qualifications, skills and the ability to perform the tasks of the higher position. Good labour relations dictate that Employers must act fairly towards its employees. In the context of promotion, this means that:
• an Employer must abide by the law and objective standards and criteria that it has set for promotion including eligibility for the post; and

• ensure that an eligible Employee has a fair opportunity to compete for the post. It is usually said that this leg of the promotion process must be procedurally fair. As the aim of a fair procedure is to achieve a fair substantive result, procedural unfairness may result in the final decision itself being substantively unfair.

When it comes to evaluating the suitability of a candidate for promotion, the Court noted that good labour relations expect an Employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an Arbitrator to interfere with an Employer’s substantive decision to promote a certain person is limited and an Arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.
[67] Circular No.20 of 2018 was withdrawn and substituted by Circular No.24 of 2019. The Applicant’s testimony presented before me relates to the shortlisting irregularity by the shortlisting panel as opposed to the appointment of a particular candidate to the advertised post.
[68] One of the Principles guiding the Interview Panel in Circular No.24 of 2019 clause 2.5.4, provides that all appointments are subject to no-dispute being lodged and the North West Department of Education and Sport Development reserves the right not to make any appointments or should it be found that the selection process was procedurally flawed.
[69] It is the Applicant’s testimony that he had lodged a dispute with the District Review Panel on 07 October 2019 for not being shortlisted. The District Review Panel did not find any irregularity and the Interview Panel proceeded with interviews and he was not satisfied by the reasons propelled by the Review Panel.
[70] The Applicant was one of the 11 candidates who applied for the principal post and his qualifications and experience were never disputed as a reason not to be shortlisted safe to say that his witness, who was a panel member of the SGB told this arbitration that Mr Adams said that there was a person who had been consistently applying for the principal post since 2016 referring to the Applicant, and that he is Post-Level 1 Educator. The witness further stated that Adams told the experts that Mr Barrel was not prepared to work under a PL-1 Educator and in this instance he was referring to Mr Temanie, the Applicant.
[71] The Applicant’s witness also testified that Dr de Vos was holding Mr Temanie’s Curriculum Vitae (CV) and asked the Interview Panel that because of Mr Temanie’s 20 years of Teaching Experience and 2 years acting as HOD and his qualifications surpasses those that have been shortlisted, if there was no possibility to shortlist him. Mr Alexander then responded by grabbing Mr Temanie’s CV from Dr de Vos and throw it on the floor and said that is a PL-1 and must fall off.
FINDING
[72] It is absolutely clear that the Applicant’s unopposed version is probable and it is also my finding that he was unfairly side lined by the Interviewing Panel by not giving him the opportunity to be shortlisted.
[73] It is further my finding that 3 years have lapsed that the Respondent had made a decision to appoint a candidate into the post and the Applicant lodged a dispute with the ELRC, which cannot be blamed on any party due to National Lockdown period, which may also have some considerable financial and administrative implications for the Respondent.
[74] It is further my finding that the process cannot at this stage be reversed but the Applicant deserves to be compensated for the hurt feeling caused by this unfairness meted against him by the Interviewing Structure of the Respondent.
[75] It is further my finding that 4 months compensation would be a reasonable relief in this instance calculated at the last salary rate of the Applicant as follows:
R31 190.10 X 4 months = R124 760.40
AWARD
[76] The Respondent, Department of Education and Sport Development – North West, is hereby ordered to pay the Applicant, Freddy Leon Temanie, compensation amount equivalent to and not exceeding One Hundred and Twenty Four Thousand Seven Hundred and Sixty Rand and Forty Cents (R124 760.40), as per the calculation in paragraph 75 above.
[77] The compensation amount in paragraph 76 above is subject to a tax directive applicable to the Applicant and becomes due and payable to him by the Respondent and by no later than 07 December 2022.
[78] I further order that the Council close this file.

Signature:
Commissioner: Shaku Landela
Sector: Education