ELRC134-21/22NW

Commissioner: Jacques Buitendag
Case No.: ELRC134-21/22NW
Date of Award: 15 November 2022

In the matter between

M N MASEPE Applicant

And

EDUCATION DEPARTMENT OF NORTH WEST 1st Respondent

And

P MOETLHOA 2nd Respondent

 
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the ELRC was scheduled virtually on the Zoom platform for 3 August 2021; 16 March-; 24 June-; 19 and 26 August-; and 25 October 2022. The proceedings were digitally recorded.

2. The applicant represented himself. Ms. B Phuswane represented the 1st respondent. The 2nd respondent represented herself. The 2nd respondent only attended the proceedings scheduled for 25 October 2022. Ms. Phuswane did not attend the proceedings on this day.

3. On 3 August 2021 I issued a ruling joining the 2nd respondent as a party to the dispute.

4. On 16 March 2022 I issued a ruling for 1st respondent to disclose information to the applicant.

5. On 24 June 2022 and 19 August 2022 the matter continued in the absence of the 2nd respondent.

6. The arbitration hearing was scheduled for 26 August 2022. Ms. Phuswane did not attend the proceedings. I was informed by the ELRC that Ms. Phuswane send an email to the Bargaining Council on 25 August 2022 indicating that she is ill. Upon enquiring from the ELRC about the medical certificate showing a different name of patient, the ELRC informed me that Ms. Phuswane has indicated that the Doctor mistakenly send through a medical certificate of a different patient and that she has requested for the correct medical certificate to be forwarded. I took it on good faith, postponed the matter and ruled that the 1st respondent must before 31 August 2022, deliver to the ELRC a medical certificate proving that Ms. Phuswana was medically unfit to attend the proceedings on 26 August 2022.

7. On 24 October 2022 at about 21h06 the 1st respondent send an email to the ELRC applying for a postponement of the matter scheduled for 25 October 2022 because Ms. Phuswane was purportedly ill. This application was not sent to the applicant or to the 2nd respondent and no medical certificate was attached to this application, moreover no explanation was provided as to the nature of the illness. Ms. Sechele, on behalf of the 1st respondent, joined the arbitration on 25 October 2022 and requested a postponement on the basis that Ms. Phuswane was ill. Again, no medical certificate was supplied. I ruled that the matter proceed. Ms. Sechele excused herself. The 2nd respondent joined the arbitration at about 09h56.

8. After the arbitration was concluded, I found an email send at 10h23 from the 1st respondent in my inbox to which a medical certificate for Ms. Phuswane was attached. The medical certificate indicated that Ms Phuswane was booked off sick from 24 – 26 October 2022 due to a “medical condition”. No information was supplied as to the nature of the illness and whether Ms. Phuswane was incapacitated to such an extent that she was unable to represent the 1st respondent.

9. I received the written closing arguments of the applicant and 2nd respondent on 2 November 2022.

THE ISSUE IN DISPUTE

10. I must determine whether the conduct of the 1st respondent constitutes an unfair labour practice concerning promotion. If so, I must determine the appropriate remedy.

BACKGROUND TO THE ISSUE

11. The applicant is a Post Level 1 educator at the President Mangope Technical High School. The 1st respondent advertised the Departmental Head post for Setswana and English (post no PB/2022/11/125 in Department Circular 58 of 2020) at the school.

12. The applicant was shortlisted and interviewed for the post. The Interview Committee ranked the applicant in the 2nd position. The 1st respondent appointed the 2nd respondent.

13. In terms of the pre-arbitration minute and in narrowing the issues, it was agreed that the facts in dispute are as follows: “The respondent violated the following guidelines 1.2.; 2.1; 6.8.2; 6.8.3; 7.2; 7.3; 7.9; 7.11; 7.18.; 7.20; 8.4 of the Departmental Circular 58 of 2020. The applicant is the best candidate.”

14. The Departmental Circular referred to above is a circular in which a list of vacancies were published. The sections which was allegedly violated reads as follows:

Objectives
“1.2 To elicit the commitment of all parties to ensure meaningful and democratic participation of relevant stakeholders.
Principals
2.1 The process must be congruent with agreement reached in the ELRC with specific reference to the collective agreement 5 of 1998.
General principals / Criteria for shortlisting of applicants
The interview committee must conduct the short listing subject to the following guidelines:
6.8.2 The circular needs of the school
6.8.3 The subject or post requirements

Interviews
7.2 The resource person must share the equity status with the panel before the interview may proceed
7.3 The panel must be made of at least three members (two experts and a person who may not be an expert by experienced, have appropriate knowledge and/or expertise and/or involvement in the domain covered by the post.) Any deviation for the norm must be thoroughly motivated and approved by the Head of Department or delegate
7.9 Questions must be set in the morning of the interview and must respect the 60:40 (60% actual work knowledge and 40% policies, circular and legislation) rule of the composition of questions.
7.11 All interviewees must receive the same treatment during interviews.
7.18 The interview committee at the institution should remain unaltered until the interviews are completed.
7.20 The resource person must ensure that the committee is not altered at all cost should that happen, then the interview must be stopped immediately.
General information
8.4 The School Governing Body must notify the unsuccessful shortlisted candidates after the incumbent has assumed duty.

15. The relief sought by the applicant is for the appointment process to be redone. The 1st respondent denies committing an unfair practice concerning promotion.

SUMMARY OF EVIDENCE AND ARGUMENT

16. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute. The applicant and 1st respondent submitted documentation into evidence. I have taken these documents into consideration.

The applicant’s evidence and argument
17. Mr. Masepe testified under oath.

18. The applicant avers that there was no meaningful and democratic participation of relevant stakeholders because the SMT, Principal and unions did not meet to discuss the needs of the post prior to the post being advertised. The applicant submitted that a grievance he lodged about the interview process was not addressed.

19. The applicant testified that he has more skills and experience that the 2nd respondent. He pointed out that the 2nd respondent teach English and not Setswana at the school. According to the applicant the 2nd respondent does not understand Setswana.

20. About the interview process itself, the applicant testified that the members of the interview panel was Principals of primary schools, and he questioned their expertise in dealing with a post at a secondary school and the language subject matters as advertised.

21. Regarding the principal that the interview questions must contain 60% actual work knowledge and 40% policies, circular and legislation, the applicant referred to the interview questions and testified that these principals were not adhered to. The following 10 questions were asked:
“1 Mention the co-duties and responsibilities of a departmental head?
2 Discipline is a thorny issue inn out school, what steps will you follow withing your department and learners?
3 How would you embrace the use of ICT in your department of languages?
4 Mention and elaborate in 3 policies that you would use in your department in day to day running of the school?
5 Covid 19 has disrupted learning and teaching. What strategies would you use to recover the lost time?
6 There’s transformation in the way language papers are set, how would you as the departmental head, ensure that educators are on par in incorporating trends with question?
7 Explain 8 week rule with reference to Pam documents, Chapter J as amended in 2016?
8 Teacher development is integral in the curriculum delivery, which strategies would you use to develop your teachers in your department
9 How would you help or encourage the disadvantaged learner e.g. a leaner who is stuttering?
10 During the announcement of 2020 results analysis, the minister emphasised the 7 point plan, please take us through any 3 and explain them?”

22. The applicant testified that 60% of the questions should have concerned languages. He submitted that question 10 was irrelevant and that only question 1 was relevant. He further indicated that no memorandum was supplied to the interview panel with the expected answers to these questions. The applicant avers that the questions asked during the interview and the manner in which points were allocated by the panellists without a memorandum of expected answers makes the appointment process substantively unfair.

23. The applicant further believes that he was not treated the same as other candidates. He submitted that the interviews started behind schedule and that some of the candidates were interviews 2 hours later.

24. The applicant avers that the shortlisting and interview committee must consist of the same members which was not the case in this appointment process. He submitted that 10 people were present during the interviews and that he did not know their roles.

25. The applicant submitted that contrary to the provisions of item 8.4 of the circular, he was not informed by the SGB of the 2nd respondent’s appointment after she resumed duty.

26. The applicant took issue with the 1st respondent not disclosing the minutes of the interviews and other information. The applicant testified that he met the minimum requirements of the post, and he believes that with his qualifications and experience that he was the best candidate for the post.

27. Mr. H Magor who is employed at President Mangope Technical High School as an educator in the English Department. He testified that the needs of the post was not discussed with the educators prior to the post being advertised. Mr. Magor was referred to the interview questions and he testified that question 3, 5, 7 and 10 were irrelevant and that 60% of the questions did not concern the languages as subject.

28. Ms. A Mpuru is a Department Head for English at the Tabane Technical High School. She has 27 years’ experience as an educator and was one of the candidates who were interviewed for the Departmental Head post for Setswana and English President Mangope Technical High School. Ms. Mpuru testified that the questions asked during the interview had shocked her. The questions did not concern English and Setswana, and she wondered how the interview panel tested the knowledge and skills of the candidates based on the questions asked. She only considers question 3 to have been somewhat relevant and indicated that questions 7 and 10 were totally irrelevant for the position.

The 1st respondent’s evidence and argument

29. The 1st respondent did not present any oral testimony or closing argument.

The 2nd respondent’s evidence and argument
30. Ms. P Moetlhoa testified that she was appointed in May 2021 as the Departmental Head for Setswana and English at the President Mangope Technical High School. The 2nd respondent testified that English and Setswana was some of her subjects at grade 12 level. Setswana is also her home language. She achieved i) a Diploma in Education majoring in English and History, ii) an Advanced Certificate in Education and iii) an Advanced Diploma in Education. Ms. Moetlhoa testified to her work experience and argued that her appointment was in line with the prescripts of the Employment of Educators Act.





ANALYSIS OF EVIDENCE AND ARGUMENTS

31. Section 186(2) of the Labour Relations Act, 66 of 1995, defines an unfair labour practise any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to promotion. The onus is on the applicant to prove unfair conduct on the part of the respondent in relation to promotion.

32. I will begin by setting out the principals to consider in dealing with promotion disputes.

33. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court amply sets out the governing law on promotional disputes and goes on providing the following principles to determine unfair conduct relating to promotions:

• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. See also PSA obo Department of Home Affairs (1999) 6 BLLR 577 (CCMA) where it was held that “...it must be stated that an employer cannot be said to have committed an unfair labour practice simply because it makes an unwise choice of candidate…”
34. In SARS v SSSBC & Others (2010 P54-09 (LC) Basson, J held as follows:
• the decision not to promote should be exercised in a manner that does not constitute an unfair labour practice;
• the definition of an unfair labour practice refers to any unfair act or omission that arises between an employer/employee involving unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA ’95. This definition has been interpreted by the LAC in Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion;
• the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promote is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion;
• the role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Contra: see Minister of Safety & Security v SSSBC & Others (2009) 18 LC 1.15.52 where it was held that an employer does not per se have an unfettered discretion when deciding whom to promote/the employer is not shielded from blatant forms of unfair labour practices.

35. In City of Cape Town v SA Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 (LC), it was held that the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

36. Having summarised the principals relating to promotion disputes, I will now deal with the matter at hand.

37. The applicant referred to several instances where the guidelines of Departmental Circular 58 of 2020 were allegedly not adhered to. In my determination most of these alleged “violations” has more to do with procedure than with subsistence. Let me explain. The fact that the principal of the school did not discuss the requirements of the disputed HOD post with the SMT and other stakeholders does not automatically mean that the advertisement of the post by the 1st respondent was manifestly unfair to the candidates who sought appointment to the post. As I understand the applicant’s argument, the panel conducting the shortlisting to the post did not sufficiently consider the needs of the school and or post requirements. There is however no evidence to substantiate such a claim. The fact is the applicant met the minimum requirements and was shortlisted for the post. In this regard he suffered no prejudice. I am further satisfied by the evidence of the 2nd respondent that she has also met the minimum requirements for the post. Regarding the applicant’s testimony that the interviews started late and that candidates were interviewed at different times, these factors has no bearing on the fairness of the process. The fact that the applicant was not notified by the School Governing Body of his non-appointment cannot be laid at the door of the 2nd respondent.

38. In my view high point of the applicant’s case concerns the interviews itself and questions asked to measure the candidates against the post requirements. In this regard item 7.9 of the above-mentioned circular provides that the questions posted to candidates should consist of 60% actual work knowledge and 40% policies, circular and legislation.

39. When the 60/40 principal as referred to above is not adhered to and questions are posed to candidates that does not test a candidate’s actual work knowledge and the requirements for the post it means that the selection process is materially flawed because the questions then does not test the actual job requirements and the skill and ability of candidates to fulfil those requirements.

40. In this regard the applicant testified that 60% of the questions should have concerned languages and that only the 1st question posted to the candidates was relevant. Ms. A Mpuru, who was also interviewed for the post, testified that she was shocked by the questioned asked by the interview panel and she only considers question 3 to have been somewhat relevant. Mr. Magor who is as an educator in the English Department at the school testified that in his opinion 4 of the 10 questions were irrelevant and that 60% of the questions did not concern the languages as subject. Their testimony was not refuted by the respondents. On their testimony I find the questions asked during interview was arbitrary and had failed to test the skills and abilities of the candidates sufficiently and fairly. As a result thereof the selection process is materially flawed. I accordingly find that the applicant has successfully discharged the onus of proving an unfair labour practice concerning promotion.

41. The applicant seeks as relief for the appointment process to be redone. I have considered the impact that such order will have on the respondents but, on the findings I made above, the appropriate relief is to set aside the appointment of the 2nd respondent and to order the respondent to re-advertise the post.

AWARD
The 1st respondent committed an unfair labour practice relating to promotion. The appointment of the 2nd respondent is set aside, and the respondent is ordered to readvertise the Departmental Head post for Setswana and English at President Mangope Technical High School.

ELRC Panelist: Jacques Buitendag