ELRC219-22/23EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN HUMANSDORP

Case No: ELRC219-22/23EC

In the matter between

NAPTOSA obo AL Prinsloo Applicant

and

Department of Education: Eastern Cape First Respondent

E Juba Second Respondent

School Governing Body of Third Respondent
Graslaagte Primary School

Member of the Executive Council Fourth Respondent
Eastern Cape (MEC)

Head of Department (HoD) Fifth Respondent

ARBITRATOR: Anthony Walter Howden

HEARD: 17 November 2022

DATE OF AWARD: 25 November 2022


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair conduct relating to promotion.


ARBITRATION AWARD


DETAILS OF PROCEEDINGS AND REPRESENTATION

1. The dispute was scheduled for Arbitration in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (the LRA) read with Clause 7.3 of the ELRC Constitution: Dispute Resolution Procedures (As Amended 26 May 2021). The arbitration was held on 17 November 2022 at the offices of the Department of Education - Eastern Cape in Humansdorp.

2. The Applicant, Mr AL Prinsloo – Persal Number 50436112, was present and was represented by Mr A Adams from the National Professional Teachers Organisation of South Africa (NAPTOSA).

3. The First Respondent, Department of Education - Eastern Cape, was represented by Mr SL Louw from the Labour Relations Department.

4. The Second Respondent, Mr E Juba, was present and was represented by Adv D Saayman from the National Professional Teachers Organisation of South Africa (NAPTOSA).

5. The Third Respondent, the School Governing Body of the Graslaagte Primary School (SGB), was represented by Ms MC Perils.

6. The Fourth Respondent, the Member of the Executive Council – Eastern Cape, failed to attend these proceedings.

7. The Fifth Respondent, the Head of Department, failed to attend these proceedings.

8. On the day the parties requested that the Closing Arguments be submitted in writing. It was agreed that the parties would submit the written Closing Arguments simultaneously on 24 November 2022 before close of business.

9. The Closing Arguments of the Applicant were received timeously and were taken into consideration when finalising the award. By 19:00 on 24 November 2022 the Respondent’s Closing Arguments had still not been received and the award was finalized without it.

ISSUES IN DISPUTE

10. This matter came before the Council in terms of Section 186 (2) (a) of the Labour Relations Act 66 of 1995 (the LRA). I am required to determine whether or not the Respondent committed an Unfair Labour Practice by not allowing the Applicant an opportunity to compete for the position and if so grant the necessary relief.

BACKGROUND TO THE DISPUTE

11. The Applicant, AL Prinsloo, is employed by the Respondent as a Deputy Principal at Graslaagte Primary School.

12. The Applicant applied for a promotion post of Principal at Graslaagte Primary School as advertised in Bulletin 5 of 2021/2022 with Post Number 126.

13. The Applicant was removed/shifted out of the List of Applications at the Sifting Process as the Applicant had not submitted a matric certificate.

14. The Applicant seeks that the Third Respondent’s appointment be set aside and the whole process re-done with a different/independent panel or alternatively compensation.

SURVEY OF EVIDENCE AND ARGUMENT

15. It is common cause between the parties:
- That the Applicant has been employed by the First Respondent since 1989.
- That the Applicant is currently employed in the position of Deputy Principal at Graslaagte Primary School in Humansdorp.
- That the Applicant earns a monthly salary of R36 916.00.
- That the Applicant applied for the position of Principal at Graslaagte Primary School as advertised in Bulletin 5 of 2021/2022 with Post Number 126.
- That the Applicant was not shifted in/sifted during the Sifting process for the Short Listing procedure to be done by the SGB.
- That the Applicant met all the requirements for the position of Principal at Graslaagte Primary School as advertised in Bulletin 5 of 2021/2022 with Post Number 126.
- That the Applicant was appointed as the Acting Principal for this position prior to the Second Respondent’s appointment.

16. The issue in dispute is whether the Respondent committed an unfair labour practice by not allowing the Applicant an opportunity to compete for the position.

17. The parties submitted a combined bundle (Bundle A). On the day the First Respondent submitted a bundle which is basically a copy of the Applicant’s application for the position (Bundle B) as well as a one page copy of the First Respondent’s Recruitment and Selection Policy (Bundle C). None of the documents were in dispute and it was agreed that the documents’ contents were what it purported to be.

18. At the outset I must point out that this is a brief summary of the evidence which is relevant to the central issues and that I have taken all evidence submitted into account when making my decision.

The Applicant’s Submissions

19. The Applicant after being sworn in stated the following:
- That his matric certificate had been misplaced and he had gone to the High School to get a printout of his matric marks or statement of results.
- That he had used the same document when applying for the Deputy Principal position.
- That he had matriculated in 1983 and was appointed in education in 1989.
- That he had post matric qualifications, which he would not have been able to do without a matric certificate.
- That he had his matric certificate when he applied for his original appointment in 1989.
- That he was appointed as Acting Principal and used the same document for this appointment.
- That the documents under paragraph B (Bundle A page 7) were only recommended and not a requirement.
- That a matric certificate was not an academic qualification.

The Respondent’s Submissions

20. The Respondent’s witness, G Jacobs – Circuit Manager, after being sworn in stated the following:
- That at the first process, namely the shifting/sifting process they only check for completeness of the documents; if person qualifies due to qualification/experience, etc and all documents are certified and not certified for more than 3 months.
- That the Applicant had not attached a replacement matric certificate as it was a statement of results issued by the school.
- That shifting/sifting was a normal process and the Applicant was shifted/sifted out as the application was incomplete and no evidence was attached in the form of an affidavit/application for a replacement matric certificate.
- That for that position there were about 5 people shifted/sifted out and there was no ulterior motives.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

21. Section 186 (2) (a) of the LRA states:
“Unfair labour practice means an 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 the provision of benefits to an employee.”

22. It is common cause that the Applicant did not submit an actual matric certificate when applying for the Principal position. It is further common cause that he had in fact submitted a statement of results obtained from his high school.

23. It is trite/common knowledge that when applying for a position, be it in government or the private sector a comprehensive application needs to be made which must include all qualifications; which would include a matric certificate.

24. In this instance, as mentioned above, the Applicant submitted a Statement of Results which does not comply with the requirements of the employer.

25. It is unfair to expect an employer to apply a rule/standard to one application and then not apply the same rule/standard to another application. These rules/standards are placed there specifically to protect an employer when it comes to the recruitment process and cannot be taken lightly.

26. The Applicant attempted to make these proceedings believe that evidence of a matric certificate was not necessary as the Bulletin (Bundle A page 7 paragraph B) only “recommended” that documents be attached.

27. The document states “Application Forms are to be accompanied by all relevant documentation”. If interpreted literally, I believe the intention of the author would be that all relevant documents had/must be attached to the Application Form.

28. The section in brackets “(Recommended list)”, once again if interpreted literally, I believe the author’s intention was to give the reader an indication as to what needed to be attached and did not make the submission of documents optional.

29. The Applicant further attempted to make these proceedings believe that a matric certificate was not needed as the Bulletin only referred to academic qualifications and a matric certificate was not an academic qualification.

30. As mentioned in paragraph (27) above the “Recommended list” is only that, a recommended list, and cannot be seen as an all inclusive list of everything that is required, as the document clearly states “all relevant documents”.

31. Looking at Bundle B page 2 paragraph (17) it clearly states “FORMAL QUALIFICATION (Copies to be attached to this application)*”. A matric qualification is listed in paragraph 17.1 under TYPES OF QUALIFICATIONS. It may not be an academic qualification as far as the Applicant’s definition is concerned per se, however it is very clear in this section of the application form that matric is a qualification and a copy of the qualification must be attached. (*Emphasis added).

32. The Applicant made the allegation that he had been appointed as the Deputy Principal as well as the Acting Principal using the same document, this was again confirmed in the Closing Arguments. No evidence in this regard was provided on the day and therefore remains mere allegations. The document itself (Bundle B page 15) is dated 31 January 2022 and therefore unlikely that it was used for these alleged applications.

33. The age old saying however needs to be noted in this instance “Two wrongs do not make a right”. It cannot be expected of an employer to bend rules/standards and make accommodations to certain applicants who do not comply with the “basic requirements” of an application. Even more so when the person applying is applying for a senior Principal’s position.

34. The Applicant further made the allegation that he was misled by Jacobs when he approached him about the issue surrounding his matric certificate. This was explicitly denied by Jacobs and no evidence was provided to substantiate this allegation in any way. The Applicant himself under cross-questioning stated that he was unaware of any ill feeling towards him that could have resulted in his application being shifted out.

35. It further needs to be specifically stated that the onus rests squarely on the Applicant’s shoulders to ensure that his application is compliant. To merely state that he was inexperienced is not a compelling argument, not when looking at the fact that the Applicant is a mature adult, in a position of responsibility and with years experience with the same employer.

36. Taking into consideration all the above and on the balance of probability, it is my finding that the Respondent has not committed an Unfair Labour Practice by not allowing the Applicant an opportunity to compete for the position.

37. I therefore make the following award:

AWARD

38. The Applicant, AL Prinsloo – Persal Number 50436112, has failed to prove that the Respondent, Department of Education – Eastern Cape, committed an Unfair Labour Practice relating to promotion in terms of Section 186 (2) (a) of the LRA.

39. The Application is dismissed.


Panellist: Anthony Walter Howden
ELRC