ELRC1023-21/22 KZN

ARBITRATION
AWARD

Arbitrator: J.D. Vedan
Case Reference No.: ELRC1023-21/22 KZN
Date of hearing: 07 March 2023

In the arbitration between:

SADTU o.b.o. Veriah Govindasamy Applicant/Employee party
and

Department Education - KwaZulu-Natal First Respondent/Employer party

and
Rakesh Dhanraj Second Respondent

and

Dr Shireen Devi Haripersad Third Respondent

DETAILS OF HEARING AND REPRESENTATION:

1. This arbitration was held via Zoom on 14 February 2023.

2. The Applicant, Veriah Govindasamy, was represented by Mrs P Govindasamy, a SADTU Union Official.

3. The First Respondent, Department of Education - KwaZulu-Natal, was represented by Mr I Makhooe, its representative.

4. The Second Respondent, Mr Rakesh Dhanraj, was represented by Mr S Mthimkhulu, a Union Official.

5. The Third Respondent, Dr Shireen Devi Haripersad, was represented by Mrs I. Dhanook, a NAPTOSA Union Official.

6. The parties agreed to submit written closing arguments on or before 22 February 2023.

BACKGROUND TO THE DISPUTE:

7. The matter was initially against the First Respondent, the Department of Education – KwaZulu-Natal, and the Second Respondent, Mr Rakesh Dhanraj. Later the Third Respondent, Dr Shireen Devi Haripersad, was joined in the matter as an interested party in the matter, and also as the relief sought would impact upon her.

8. There were three posts for promotion advertised at the school, namely Golden Steps School, which is a special needs school, in terms of HRM Circular 35 of 2021. The posts were in respect of post number 360, that for a Head of Department, and posts number 361 and 362 were in respect of the Deputy Principal positions.

9. One aspect that was common cause was that post 361 and post 362 were identical in every respect.

10. The selection process was undertaken, and the outcome was as follows:

10.1. The Applicant was chosen for post 360;

10.2. Mr Dhanraj was chosen for post 362, which he accepted. He was given the job offer for post 362 on 20 January 2022;

10.3. The Applicant averred that he was placed second as far as post 361 is concerned, and third as far as post 362 is concerned;

10.4. Dr Haripersad was placed second in post 362, and was, according to the Applicant, placed third in post 361;

10.5. It would appear thereafter that Mr Dhanraj was captured on the system of the First Respondent, as being a Deputy Principal in terms of post 362, and he was paid accordingly; and

10.6. Mr Dhanraj, according to the Applicant, functioned in the post for about forty-two days. However on 23 February 2022, Mr Dhanraj relinquished his post, and signed a letter, which was conveyed to the First Respondent, that he had decided to accept post 361 instead of post 362.

11. The Applicant is alleging that this was part of a conspiracy against him, as by so doing post 361, in which he was second, was closed to him, and Dr Haripersad was selected for post 362. In terms of the EHR11 form for post 361, the Applicant would have been the choice for post 361, had Dhanraj not behaved in that fashion. The Applicant alleged that Mr Dhanraj was coerced into performing this maneuver so as to exclude him from the position of Deputy Principal, and instead facilitated the placement of Dr Haripersad.

12. On 11 March 2022 the Principal of the school, Mr B.C. Singh, informed the staff that Dr Haripersad’s appointed to post 362 was confirmed.

13. The relief the Applicant sought was that he be placed in post 361 retrospectively, and with the commensurate benefits attached to the Deputy Principal post.

14. The First Respondent declined to make an opening statement in the matter.

15. The Second Respondent’s representative confirmed what the Applicant had stated. Mr Dhanraj’s version was that he received the letter of appointment for post 362 on 20 January 2022. Post 362 and post 361 are the same in every respect, as it is for the Deputy Principal positions. He confirmed that he signed the assumption of duty on 20 January 2022.

16. Time passed, and then the letter stating the outcome for post 361 was received. He was the number one candidate therein as well. He then stated that the Principal informed him that according to the District Director, Mr Kheswa, he should decline post 362 and accept post 361. Out of respect for his superiors he did this. However he is aware that Mr Kheswa had no authority to tell him to decline post 362 and accept post 361. He signed an assumption of duty for post 362 and not post 361.

17. Mr Dhanraj got paid for post 362 on 15 March 2022, as the First Respondent normally makes payment after two to three months. The payment was proof that he was paid for post 362 and not post 361.

18. The relief sought by Mr Dhanraj was that he be allowed to go back to the initial post 362, where he signed the assumption of duty, and got paid the first time as a Deputy Principal.

19. He attributed his relinquishing of post 362 to the Principal’s coercion.

20. Dr Haripersad confirmed, through her representative, that she did not know what position she was ranked for post 362. She received an appointment letter from the District Director confirming her appointment to post 362.

21. She stated that the preference list of Mr Dhanraj showed that he had selected post 361 as it was the first preference on his list, and chose to go to 361. She stated that it is absurd that a Principal could influence a person to leave one post and go to another post. Her representative stated that Mr Dhanraj gave up post 362 as post 361 was number one in his preference list.

22. It has to be noted that both the Applicant and Mr Dhanraj were both on Level 1, and not in management. It was alleged that Dr Haripersad acted in a Level 3 position. However later in evidence it was found that she was not officially acting in the Level 3 post, but was assigned by the Principal to do some duties when the institution did not have a Deputy Principal.


23. Her letter of appointment would not have been issued by the District Director without the letter from Mr Dhanraj declining the post.


24. She alleged that there was no burden or responsibility on her to prove anything, as there were no allegations being made by her.


25. It was further noted by Dr Haripersad’s representative that it appears that the First Respondent and Mr Dhanraj agreed with the Applicant. However the First Respondent’s representative stated that he was aware that practice and procedure had been flouted in the matter, and was awaiting an outcome.

ISSUE TO BE DECIDED:

26. Whether the First Respondent committed an unfair labour practice against the Applicant in terms of Section 182 (2)(a) of the LRA in respect of promotion?

APPLICANT’S EVIDENCE:



27. The Applicant testified that he applied for all three positions, and he was placed second in post 361, and third in post 362. He came across the fact that he was placed second fortuitously when he was called to assist in repairing a photocopy machine, and the EHR11 from for post 361 was left in the machine, and had to be removed.


28. On 20 January 2022 Mr Dhanraj received notice of his placement in 362. Therefore post 361 should become available to him in the natural course of events. However it appeared that Dhanraj then relinquished post 362 and accepted post 361. He stated that it was out of character for Mr Dhanraj to have undertaken what he termed an unprocedural step, which had the effect of denying him post 361.


29. He believed that Mr Dhanraj’s move was to remove him from the promotion race, and accommodate Dr Haripersad, who was placed second for post 362 and to be installed as Deputy Principal.


30. Under cross-examination he stated that there was a staff meeting held on 28 February 2022 whereby the Principal made an announcement that Mr Dhanraj was relinquishing post 362 for post 361. The staff were not given clarity on when this occurred, except for being told that it was about a week ago


31. He had enquired from the Principal as to how this had happened, and the Principal informed him that Mr Kheswa called him and asked Mr Dhanraj to relinquish post 362 for post 361. The Applicant found this highly irregular, and informed the Principal that he would be lodging a grievance. Almost all the staff were present at the meeting, which was minuted. The minutes were taken by Ms Nozipho Buthelezi, an Educator, who is the secretary at meetings.


31. When the minutes were circulated, it was discovered that a sizable portion of the minutes, which covered the aspect of Mr Dhanraj’s about turn, was left out. Enquiries were made with the secretary, and it was noted that the Principal had deleted this portion, and informed her to leave it out.


32. The Principal had stated that he was given a directive by Mr Kheswa, which he passed onto Mr Dhanraj.


33. The Applicant stated that he was an Educator at Golden Steps School for seven years, and currently he has been appointed to Stanger Training Centre.


34. The Applicant stated that Mr Dhanraj was really excited after receiving the news of being appointed to post 362, and the staff celebrated with him. The staff then awaited for the announcement for post 361. He questioned the Applicant about the results for post 361, and noted that the Principal’s attitude towards him changed. He was being constantly pressured by the Principal to sign the acceptance for post 360, which was the Head of Department post.


35. When Mr Dhanraj received news about his appointment to post 362 he was very excited, and as far as the Applicant was concerned the change from post 362 to post 361 was not done willingly. He did question Mr Dhanraj, and he was told that Mr Kheswa had called the Principal, and that he was acting on this directive. However at the staff meeting the Principal stated that Mr Kheswa had called Mr Dhanraj.


36. He said that because the two posts were exactly the same, he accepted that Mr Dhanraj could have placed post 361 as first on his preference list.


37. The Applicant said that he left the school in October 2022, and was appointed as Deputy Principal at Stanger Training Centre. However if the process at Golden Steps School had been properly carried out, he would have been appointed as Deputy Principal earlier, and therefore has lost several months of increased salary. Furthermore he lives in Tongaat, and Golden Steps School is a shorter distance from home, whereas Stanger is about one hundred kilometres return, and has cost implications for him. He said that he contributed a lot to Golden Steps.


38. The second witness for the Applicant was Mrs Meera Devi Seodutt. She stated that she was a Level 1 Educator at the school. She testified that once it was leaned by the Principal learned that she was giving evidence in the matter, the Principal asked her not to attend and get involved. He told her to remain silent, and if she went ahead her journey would be unpleasant. She was instructed that if she attended the arbitration when the matter was first set down, she should be prepared for what would come.


39. Since then she found it a challenge to communicate with the Principal regarding the dispute. She did not consult with the Principal regarding her presence at the arbitration thereafter. In fact she was on duty on 14 February 2023 when the arbitration took place, as the learners were currently in Durban attending cricket training. As she was giving her evidence she was sitting in the school bus, and giving evidence via Zoom.


40. She confirmed that there were three promotional posts advertised. The few short-listed candidates for these posts were the same people. The results were a matter of interest to her as she was a candidate.


41. In January 2022 an announcement was made for post 362 by the Principal wherein Mr Dhanraj was successful. An announcement was also made for post 360, wherein the Applicant was successful. When the staff returned after the weekend, the appointment of Mr Dhanraj was celebrated. He had uploaded photographs on social media of his achievement. He was congratulated by the Acting SCM, Mr L.B. Maharaj, on social media. He was very pleased at holding post 362.


42. As far as she was aware, the Applicant held on with accepting post 360, as he was awaiting the results for post 361.


43. There was a meeting that took place between the First Respondent and the Senior Management Team. Educators were not present at this meeting. However a report back was read out to them at a staff meeting, held on 28 February 2022, by the Principal. They were informed that Mr Dhanraj had declined post 362 and accepted post 361. The Principal said the Department had made a mistake in announcing post 362 first.


44. The meeting then continued again on the morning of 1 March 2022. The Principal stated that Mr Kheswa had made a personal call to Mr Dhanraj, and had given him a choice for post 361 and post 362. The staff had enquired as to when this had happened, however no response was received. The Principal said that he sent a recommendation for post 362 to be re-looked at. However there was no feedback received.


45. There was no formal announcement made for post 361, although announcements are made when staff applied for posts.


46. It is clear that Dhanraj’s about turn made provision for Dr Haripersad to be given a Deputy Principal post. She stated that perhaps Mr Dhanraj was placed under pressure, and the process did not flow naturally.


47. On 11 March 2022 there was an announcement for post 362 made. She was surprised as an appointment had already been made. The Principal said that Dr Haripersad was appointed to post 362. This was of great concern to her as it did not add up, and her total understanding was that something had gone wrong.


48. The Principal knew she was to give evidence on 14 February 2023, and thus she was tasked to attend to duties.


49. The meeting on 28 February 2022 was an Educator staff meeting. The school has twenty-one Educators. There may have been one to two absent at the meeting.

50. She testified that she is at Golden Steps for thirteen years. Her view was that the Principal was not a fair individual, however this was only in respect of promotions, wherein the Principal, she alleged, had favoured candidates. Otherwise working relations were good.


51. She stated that she was a vocal person, and that she had been pushed aside for promotion posts, and she was spoken to very badly.


52. Under cross-examination by the Third Respondent’s representative, she confirmed that she had applied for post 360, wherein the Applicant was appointed. It was put to her that she had a vested interest in the matter, as if the Applicant declined that post then she would have got the position. She denied this. She said that she had backed down from a recent promotion post because of an incident that occurred between the Principal, a few other staff and herself. She had retracted her CV. She stated that she was not desperate for a promotion.


53. She stated that post 361 is higher than post 360.


54. She confirmed the evidence of the Applicant regarding Mr Dhanraj’s excitement at being given post 362. The Principal stated that Mr Kheswa had contacted Mr Dhanraj.


55. She testified that the Applicant eventually accepted post 360.



FIRST RESPONDENT’S EVIDENCE:



56. The First Respondent did not call any witnesses.
SECOND RESPONDENT’S EVIDENCE:



57. Mr Rakesh Dhanraj, the Second Respondent, testified. He stated that he also applied for all three posts, and was awarded post 362 first. He accepted the post very gladly, as he was being promoted to Deputy Principal.


58. However at a later date he was also awarded post 361. He was in awe at being awarded both posts. He spoke to the Principal, and the Principal said that he must take post 361 and decline post 362, as the Department had messed up, and he would rectify the matter. His intuition said that something was wrong, but he did not want to go against his Supervisors. He listened to the Principal’s instructions.

59. The Principal had stated at the staff meeting that Mr Kheswa had called the witness, and told him to take up post 361. As Mr Singh was the Principal and Mr Kheswa was the District Director he had to comply. He questioned the Principal after the meeting, as he was shocked, but the Principal told him not to worry.

60. He said that he should not be prejudiced because he listened to the Principal. He had notified his family and friends of his promotion. This matter has put great pressure on his health.

62. Mr Dhanraj made an allegation that the Principal had instructed the minute taker to change the minutes of all the meetings where he was biased towards his favourites. He regarded this as sinister, as the minutes is a legal document. The staff are being pressured to sign minutes from 2022. Some staff members signed without knowing that the Principal had asked the secretary to edit the minutes. However some of the staff, including himself have not signed the minutes.

63. He complained about the Principal treating him very badly, and stated that he was on the verge of a nervous breakdown. He stated that this started from the time Dr Haripersad was appointed as Deputy Principal. The Principal put him down, and called him names, whereas the Principal should have been guiding, encouraging and developing him. He then elaborated on the unbecoming attitude of the Principal towards the staff.

64. He denied receiving any call from Mr Kheswa, neither did he receive any note about him accepting post 361.

65. He stated that he wrote post 361 first on his preference list simply because of chronological order. According to his knowledge, the preference list is followed is you are applying for positions in different schools, or different areas. However he had applied to the same post in the same school.

66. He confirmed that he has received payment on 15 March 2022 for post 362. Dr Haripersad was appointed to post 362 sometime in March 2022.

67. He stated that he did not know why the Principal wanted him to change posts. He did not know why the pressure was on him at that time. He was asked by the Principal to write a letter resigning from post 362. The Principal told him what was to be on the letter. He does not recall signing an assumption of duty for post 361.

68. Under cross-examination he stated that he was advised on a Friday by the Principal that he was accepted for post 361 as well. The Principal told him to accept this post, as the Department had made a mistake. The Principal told him to write a letter declining post 362. He did not know the implications of changing from post 362 to post 361. He only became aware of the further choice for post 362 when the announcement was made. When the Applicant mentioned that he would be lodging a dispute it dawned on him what had occurred. The Principal used him to get a favoured person, which was Dr Haripersad, into a post.

69. The minutes of the meeting were doctored as parts were left out. He stated that the Principal is a law unto himself. He was only called to one SMT meeting this year, as the Principal makes all the decisions himself.

70. He stated that what had occurred was unjust and unfair.

71. It was put to him that the Principal’s character was irrelevant, whereupon he stated that his testimony was an insight into the type of person the Principal is. He did not report the Principal to the Union, as he was afraid of the Principal.

72. He said that he merely placed post 361 in front of post 362 due to chronological order. There was no preference, as both the posts were same, with the same salary and benefits.

73. It was put to him that Dr Haripersad had asked him why he accepted post 361 instead of post 362, and he had stated that he went with his preference list.

74. He stated that he did not have a personal vendetta against the Principal. He undertakes what is asked of him to the best of his ability.

75. He said that the Principal came to his house in the early hours of the morning, between 6:00 to 7:00 am, on a Monday, after sending him a message, to collect the letter which stated that he accepted post 361 and relinquished post 362.

THIRD RESPONDENT’S EVIDENCE:

76. The Third Respondent, Dr Shireen Devi Haripersad, gave evidence. She stated that she is working for Golden Steps School for twenty-four years, and was a Department Head for eleven years.

77. She carried out some duties on Level 3 as a Deputy Principal on many occasions. When she applied for post 362 she was a Department Head at that time. There was no Deputy Principal and no acting Deputy Principal. When an Educator was appointed for the acting Deputy Principal post it was disputed, and no-one was appointed. The Principal called upon herself and another colleague to execute duties assigned to the post.

78. She stated that she applied for post 361 and post 362. She was appointed to post 362 by way of a letter of appointment signed by Mr Kheswa, and given to her at a meeting. Mr Dhanraj had occupied that post. It did not make sense why he would leave the post and accept post 361. This had raised eyebrows.

79. She did not think it was the proper forum to question her seniors. She questioned Mr Dhanraj on 14 March 2022, outside the office, and he confirmed that he went with his preference list. He said that she knew he was successful with both posts, and went with his preference. She also questioned Ms Jackie Francis, the Chairperson of the Interview Committee, who confirmed that Mr Dhanraj went with his preference.

80. Dr Haripersad had performed her duties ever since.

81. Mr Dhanraj denied speaking to Dr Haripersad with regards to the above.

82. She confirmed that she did not have an acting post at any time. She had just performed the duties given to her by the Principal.

83. Dr Haripersad stated that Mr Kheswa had come to the school on 23 and 24 February 2022 to discuss a myriad of issues, among which were HR issues. The Principal had asked Mr Kheswa to look into the promotion matter, and Mr Kheswa said he will give feedback.

84. The Principal stated that Mr Kheswa said that the matter was rectified, and Mr Dhanraj went with his preferred post. She did not know she was second for post 362. Furthermore she stated that the only person who could make an appointment is the Head of Department, and Mr Kheswa is part of that structure.

85. She cannot confirm what Mr Dhanraj said, as all she was told was that he went with his preference list. She cannot say what the Principal did or did not do. She did not know what was the Principal’s plans, although she knows that she benefited by getting an appointment letter. She was not privy to where she was on the list.

86. She stated that she asked the Chairperson of the Interview Committee why Mr Dhanraj swapped posts, and the Chairperson mentioned that he went with his preference list. She did not know how the Chairperson became aware of this. Mr Dhanraj is a member of the School Governing Body, however he had recused himself for this process.

87. Dr Haripersad said that she only heard on the day of the arbitration that the Principal had forced Mr Dhanraj to accept post 361. She stated that she did not fabricate anything in her evidence.

88. She stated that she assumed that the letter for post 361 arrived at school on 28 February 2022. She said that she had not heard of posts being switched before.

89. She has a working relationship with the Principal, and it is done on a professional level.

90. She is not aware that chunks of the minutes were missing. She was only informed of this at the arbitration, and will look into it.

ANALYSIS OF EVIDENCE AND ARGUMENTS:

91. The general rule is that he/she who alleges a fact must prove it on a balance of probabilities. In unfair labour disputes, such as the present case, the onus rests on the Applicant to prove the unfair practice. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair”. The overall onus always rests on the employee to show the existence of an unfair labour practice. The Applicant has to prove his case on a balance of probabilities.

92. This is a unique case in that the First Respondent and the Second Respondent, Mr Rakesh Dhanraj, more or less confirmed what the Applicant is stating.

93. The First Respondent did not tender any evidence, and merely said that the First Respondent was awaiting developments in the matter. However the First Respondent did cross-examine the witnesses.

94. Mr Dhanraj corroborated the evidence of the Applicant, and the witness, Meera Devi Seodutt, in that he was excited at being given post 362, and in fact celebrated the achievement. He also testified as direct evidence that he was made to decline post 362 and accept post 361 by the Principal. The Principal had informed him that the District Director, Mr Kheswa, had in fact instructed that this change come about. Whereas the Principal announced at the staff meeting on 28 February 2022 that Mr Kheswa had called Mr Dhanraj, and instructed him to do this. He stated that the Principal told him Mr Kheswa had called the Principal about this matter.

95. It is accepted that Mr Kheswa has no authority to enforce changes as far as appointments are made. Furthermore it would seem that pressure was placed on Mr Dhanraj to write the letter declining post 362, and it is somewhat surprising that the Principal was in such a hurry to get this aspect sorted out that he called at Mr Dhanraj’s house, prior to school commencing, to collect the letter which was written under the direction of the Principal, but however signed by Mr Dhanraj.

96. It is clear that Mr Kheswa’s name was being used as an authoritative tool to enforce the change.

97. Mr Dhanraj gave his evidence in a clear and straight forward manner, although his evidence to an extent might prejudice him.

98. Post 361 and post 362 were the same post, identical in every respect. There could have been no preference as far as post 361 and post 362 are concerned. The posts were not for different schools. It would not have made an iota of difference to Mr Dhanraj if he accepted post 361 or post 362. This change could only be instructed or ordered to be entered into by another party. It would appear that Mr Dhanraj indicated that he bowed to the superior authority of the Principal and Mr Kheswa.

99. Mrs Seodutt corroborated the evidence of the Applicant and Mr Dhanraj on most of the relevant aspects herein.

100. Dr Haripersad often used phrases such as “I don’t know”, “I’m not sure”, and “I don’t know what the Principal did” when aspects were put to her. She had also considered it a strange sequence of events as to why Mr Dhanraj should decline post 362 and accept post 361, and she asked Mr Dhanraj and the Principal about this, and it was apparently due to his preference list. However Mr Dhanraj denied this, and it is improbable that one prefers one post over another wherein the posts were identical.


101. I accept that the Applicant was privy to the EHR11 form fortuitously when repairing the photocopy machine.


102. This is a case which is unusual as the events occurred after the selection process was completed.


103. Promotion in the new shorter Oxford English Dictionary is defined as an “advance” or “raise to higher rank or position”. Both post 361 and post 362 were exactly the same. There was no logical reason for Mr Dhanraj to reject post 362 and accept post 361. This is inexplicable. There was no difference in remuneration, no difference in level, no difference in fringe benefits, no difference in status, no difference in levels of responsibility, and no difference in level of authority and power, and also no difference in level of job security.

104. It is clear in this case that the First Respondent more or less accepted the version of the Applicant, as did the Second Respondent.


105. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT the Court emphasised that whilst an unfair labour practice dispute related to a promotion the onus is on the employee to demonstrate that the failure to promote is unfair, the employer, is in the same token obliged to defend the challenge on the procedural and substantive fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion process. In the absence of such evidence it would be irrational and unreasonable to conclude that the employer acted, fairly regardless of where the onus lies.


106. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:

a) whether the failure or refusal to promote was caused by unacceptable, irrelevant, or invidious consideration on the part of the Employer; or

b) whether the Employer’s decision was arbitrary, or capricious, or unfair; or

c) whether the Employer failed to apply its mind to the promotion of the Employee; or

d) whether the Employer’s decision not to promote was motivated by bad faith;

e) whether the Employer’s decision not to promote was discriminatory;

f) whether there were insubstantial reasons for the Employer’s decision not to promote;

g) whether the Employer’s decision not to promote was based upon a wrong principle;

h) whether the Employer’s decision not to promote was taken in a biased manner.


107. I am of the view, which seems to be held by the First and Second Respondent that the Applicant, but for the change in the decision by Mr Dhanraj, would have been the incumbent of post 361.


108. In this matter there appears to be a manipulation of the system, and in the natural course of events the Applicant would have been appointed to post 361.


109. There should have been better oversight by the First Respondent initially, at the stage of the appointments, over the actions of its officials and employees. It would seem to me that the Department made the appointment without full knowledge and interpretation of the interplay and circumstances leading to the appointment.


110. In Minister of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR 1128/07) [2008] ZALC 35 the employer argued that since in terms of applicable legislation only the Minister has the statutory discretion to make appointments, arbitrators cannot do so. The Labour Court rejected this argument and held that an arbitrator can make an appointment. It held that by virtue of sections 209 and 210 of the LRA arbitrators have the jurisdiction in promotion disputes to direct government as employer to appoint a specific candidate even where legislation entrusts the duty to make appointments to a specific official.

111. Even the Third Respondent stated that she was surprised at the decision taken by Mr Dhanraj, and Mr Dhanraj was in the best position to confirm what had occurred, and he supported the case of the Applicant.

112. Furthermore the move from post 362 to post 361, as stated by the First Respondent, is not a promotion, but is effectively a transfer, as the selection process was completed, and this entailed that the post became substantively vacant, and should have been subject to a fresh process and re-advertised.

FINDINGS:

113. I therefore find as follows:

113.1. The appointment of the Third Respondent is invalid in the matter;

113.2. The Second Respondent is to revert to post 362; and

113.3. The Applicant is to be appointed to post 361.

114. If the Applicant’s appointment had taken place, he would have been appointed to post 361 at the end of February 2022. However he was appointed to the post of Deputy Principal at Stanger Training Centre in October 2022, and this would mean a period of seven month in which he lost the increase in earnings and benefits.

115. Based on a Deputy Principal’s earnings of approximately R401 383-00 per annum, and a Level 1 Educators earnings of approximately R235 562-00 per annum, the difference would be R165 821-00. Therefore the Applicant’s loss of additional earnings would have been R96 728-91 (R165 821-00 / 12 x 7), however this will be subject to adjustment with regards to taxes and other legal deductions.
AWARD:

116. The appointment of the Third Respondent, Dr Shireen Devi Haripersad, to post 362 is declared to be invalid, and she is to revert to her former position;

117. The Second Respondent, Rakesh Dhanraj, is to revert to post 362 at Golden Steps School;

118. The Applicant, Veriah Govindasamy, is to be appointed to post 361 as from 28 February 2022;

119. The Applicant is awarded compensation in the amount of R96 728-91 (ninety six thousand, seven hundred and twenty eight rand and ninety one cents) subject to the necessary tax directive;

126. The First Respondent, Department of Education – KwaZulu-Natal, is directed to pay the Applicant the sum of R96 728-91 (ninety six thousand, seven hundred and twenty eight rand and ninety one cents) within twenty-one days of being notified of this award.

127. The Third Respondent, Dr Shireen Devi Haripersad, is to tender her services in her former position within forty-eight hours of being made aware of this award.

128. The Second Respondent, Rakesh Dhanraj, is to tender his services in to post 362 within forty-eight hours of being made aware of this award.

129. The Applicant, Veriah Govindasamy, is to tender his services in to post 361within forty-eight hours of being made aware of this award.
131. There is no order as to costs.

J.D. VEDAN
ELRC Panellist