ELRC 654-21-22 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MKHUZE
Case No ELRC 654-21-22 KZN
In the matter between
NAPTOSA OBO DEVNATH CHERYL KEERPAUL Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
SADTU O B O MNGOMA THEMBELIHLE IVY 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 27 JANUARY 2023
DATE OF AWARD : 9 FEBRUARY 2023
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1 This matter was set down for arbitration on various dates and on the 27 January 2023 the evidence was completed at the Durban Teacher’s Centre offices in Durban. This matter was under the auspices of the Education Labour Relations Council (ELRC). Ms Leann Roos of NAPTOSA represented Ms Devnath Cheryl Keerpaul (applicant), Mr Itumeleng Makhooe represented the Department of Education KZN (1st respondent), second respondent was represented by Mr Mbuyiselwa Myeza of SADTU. The parties were to submit written closing arguments by the 3 February 2023. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.


THE ISSUE IN DISPUTE

2 I am required to determine whether the 1ST respondent committed any unfair labour practice in not promoting the applicant to the post in question Deputy Principal of Fulton School for the Deaf and dependent thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE

3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Ms Mngoma Thembelihle Ivy was appointed to the post. The applicant prays that the appointment be set aside and be appointed to the post alternatively for the process to be re-done or compensation of 12 months of her current salary.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant applied for the post and was short listed and interviewed by the Interview Committee and believes that she met the requirements and the appointee did not have special school experience.

FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent will prove that the applicant is taking chances and she does not have a case at all and she seems to be clutching at straws.
6. She contends that the Interview member slept through part of the interview.
7. The first respondent contends that the application be dismissed and the second respondent remain in the post.
SECOND RESPONDENT’S OPENING STATEMENT
8. The second respondent believes that all the processes were followed and she was appointed on credibility and that the case be dismissed.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

Ms DEVNATH CHERYL KEERPAUL
Ms Devnath testified to the following effect:
9. At the time and presently she is the Head of Department Intermediate Phase and has 20 years-
experience and 22 years at a school for the deaf. She has a qualification in Deaf Education including sign language qualification and interpreting qualification.
10. She had the required qualifications to be short listed and interviewed.
11. She has acted as Deputy Principal for two years 2019-2021.
12. The questions were generic and not specific to deaf education and she used her experience to
answer the questions.
13. Deafness required specialized knowledge and experience. The children do not learn the same as normal children. Need to provide knowledge to train and support the teachers to teach children at a deaf school.
14. She had to carry out all the duties at the school and had a good relationship at the school. She
attended meetings at provincial and national levels.
15. She believes that she is the better candidate.
16. The questions were based on normal schools.

Under cross-examination by the First Respondent she stated that
17. Her highest qualification is Masters in Education. She has experience in special school.
18. The minimum requirements were in the promotion document. The principal was the Resource Person and she would have assisted the Interview Panel. She was a new principal.
19. She was represented by her trade union at the interviews.
SPECIAL NOTE:

EVIDENCE ON BEHALF OF THE FIRST AND SECOND RESPONDENTS
20. The respondents elected not to call any witnesses.

CLOSING ARGUMENTS
21. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
22. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. 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.
23. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
24. The following are recorded for completeness:
Promotion: Procedural Fairness
• Do not be overtly technical in respect of procedural irregularities
• We do not go digging to try and find points to frustrate the appointment of suitably qualified educators.
Promotion: Substantive Fairness
• Very difficult to prove
• Applicant must prove she was the best of ALL the candidates who applied for the post taking into account all these factors:
• Qualifications and experience as per CV’s
• Performance during interviews
• Subjective impressions made during interviews

Case Study
Thandile v ELRC (JR 1089/16) [2021] ZALC JHB 226 (11August 2021)
Allegation: Interview panel was not properly constituted
Court held
• This was immaterial
• Applicant did not complain about it at the time while knowing it was not properly constituted
25. Section 6 of the Employment of Educators Act 76 of 1998
Powers of the Employer
6 (1) Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-
(a)…………..or
(b) in the service of the Department of Education shall be made by the Head of Department.

26. The Interview Committee appointed by the DOE made a recommendation that Ms Mngoma Thembelihle Ivy be appointed to the post. This was done. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, and therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint her as the deputy principal of Fulton School for the Deaf.

APPLICATION OF THE LAW TO THE FACTS
27. The promotion process of the respondent the Department of Education is regulated by HRM
Circular NO.35 of 2021 documents and collective agreements. The stakeholders in the
education sector continuously appraise the procedure manuals and where necessary amendments are effected.
28. The following are of importance to direct parties in this sector that careful consideration must
be given to the following principles that guide/ direct the promotion/ appointment process.
Should a better understanding evolve then this would lead to a more expeditious filling of
advertised posts and effective teaching and learning situation. It is a clear from the number of
disputes attended to by the ELRC that the education sector is saddled with promotion disputes
that have the net result that the vacant posts remain in limbo until the matters are settled either
by agreement or by awards.
29. The following are recorded in the promotion manuals.
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative
Measures (PAM) and replaces all other previous practices and procedure manuals. In this
regard the following general principles must be noted:
2.1.1 The obligations of the State as the Employer in terms of sections 195 and 197 of the
Constitution of the Republic of South Africa which includes the following factors:-
a) the ability of the candidate; and
b) the need to redress the imbalances of the past in order to achieve broad representation.
2.1.2. the obligations………………………..
2.1.3. the obligation to achieve equality in the workplace in accordance with the provisions of
the Employment Equity Act (EEA) of 1998, as amended.

30. The parties are bound by the collective agreement and this includes individual educators
employed by the KwaZulu Natal Education department.
31. As a consequence of the above I determine that the appointment of Ms Mngoma Thembelihle Ivy as
Deputy principal of Fulton School for the Deaf be confirmed.
32. COSTS
I have considered the issue of costs and determine that no party acted frivolously or vexatiously in
the proceedings and do not order of costs against any party.
AWARD
33.1 The application is dismissed
33.2. The appointment of Ms Mngoma Thembelihle Ivy as Deputy principal of Fulton School for the Deaf be confirmed.
33.3. There is no order as to costs.

DATED AT DURBAN ON THIS 9 DAY OF FEBRUARY 2023.


A S DORASAMY (ARBITRATOR)