ELRC711-21/22KZN

IN THE ELRC ARBITRATION
BETWEEN:
ANITA MOHAN the Applicant

And

DEPARTMENT OF BASIC EDUCATION – KWAZULU-NATAL the first Respondent

NIRVARA MANAWAR the Second Respondent

ARBITRATION AWARD

Case Number: ELRC711-21/22KZN
Last date of arbitration: 09/02/2023
Date of award: 30/03/2023
Arbitrator: Scelo V Mkhize
Education Labour Relations Council
ELRC Building, 261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.z
DETAILS OF THE HEARING
1. The matter was enrolled before me for arbitration proceedings in terms of section 191(5) (a) (iv) of the Labour Relations Act 66 of 1995 as amended (The Act). The arbitration was held on various dates being 29 and 30 November 2022 as well as 08 and 09 February 2023. The arbitration was held at the offices of the Department of Education, Ugu District, Port Shepstone.

2. The Applicant, Ms Mohan, appeared in person and was represented by Mr Rishal Juguth a trade union representative from NAPTOSA. The First Respondent, on the other hand, was represented by Mr Manjit Bejanath an official from the Department of Education, KwaZulu-Natal. The Second Respondent, Ms Nirvara Manawar, also appeared in person and she was represented by Sphesihle Mkhize a trade union official from SADTU.

3. The arbitration was held in English and it was mechanically recorded.

ISSUE TO BE DECIDED

4. In these proceedings, I am required to decide whether by not promoting the Applicant to the position of the Foundation Phase Departmental Head, the First Respondent committed an unfair labour practice envisaged by section 186 (a) of the Act. If so, I must determine the relief that the applicant would be entitled to.

BACKGROUND

5. The Applicant is Anita Mohan who is currently employed by the First Respondent at Port Shepstone Primary School. The First Respondent is the Department of Education KwaZulu Natal, a governmental department dully fulfilling its mandate in terms of the Constitution and in terms of the South African Schools Act 84 of 1996, with its provincial offices at 247 Burger Street, Pietermaritzburg, KwaZulu Natal. The Second Respondent is Nirvara Manawar who was appointed to the post concerned.


6. The Applicant referred a dispute for unfair labour practice relating to promotion in terms section 186 (2) (a) of the Labour Relations Act 66 of 1995 to this honorable council claiming that First Respondent committed an unfair labour practice by not promoting her to the position of a Foundation Phase Departmental Head.

7. The Applicant’s claim emanated from the First Respondent’s advertisement of the post of the Foundation Phase Departmental Head. The post was advertised on 28 July 2021 in bulletin number 35 of 2021. The minimum requirements of the post were the following: 3 or 4 years professional teaching qualification; a minimum of 3 years actual teaching experience; a further 2 years of teaching experience in the relevant phase.

8. The Applicant applied for the position before the closing date. She was shortlisted and invited for an interview which was held on 28 October 2021. The Applicant was ranked number 4 in the interviews ranking and the Second Respondent was ranked number 1. Both, the Applicant and the Second Respondent were recommended for appointment. However, the Head of Department decided to appoint the Second Respondent based on the rankings.

9. The basis for the Applicant’s claim is that she was the most suitable candidate for the position because she had managerial experience which the Second Respondent did not have. Furthermore, the Second Respondent did not meet the minimum requirements because she did not have the minimum of two years teaching experience in the foundation phase.

10. The First Respondent denied that it committed any unfair labour practice relating to promotion against the Applicant, in particular, that the Applicant was the most suitable candidate for the position and that the Second Respondent did not have the minimum of two years teaching experience in the foundation phase. Similarly, the Second Respondent denied that she does not have managerial experience and the minimum of two years teaching experience in the foundation phase.

COMMON CAUSE FACTS

11. The following facts were common cause between the parties: the minimum requirements for the posts; that the Applicant and the Second Respondent applied for the post; that they were shortlisted and called for interviews; that the Applicant was ranked number 4 in the interview rankings; that the Second Respondent was ranked number 1 in the rankings; that they were both recommended for appointment and that the Head of Department decided to appoint the Second Applicant based on the interview rankings.

ISSUES IN DISPUTE

12. The following issues were in dispute between the parties: Whether the First Respondent committed an unfair labour practice relating to promotion against the Applicant, in particular, whether the Applicant was the most suitable candidate for the job; whether the Applicant had managerial experience which the Second Respondent did not have and whether the Second Respondent had the minimum of two years of teaching experience in the foundation phase.

SURVEY OF EVIDENCE AND ARGUMENTS

Applicant’s case

13. The Applicant called three witnesses in support of her case viz: the Applicant herself, Gugu Pretty Girl Bhengu and Desiree Moodely. The Applicant was the first witness to testify and she testified as follows:
14. She has an M4 higher education diploma in Junior Primary school. In the foundation phase, there are specific skills that children need to learn for example, hand writing and reading phonic which is not taught in the senior phase and which she was trained for at a College of Education. She began teaching at the school in 1996 and at time of the hearing she had 26 years teaching of experience. During these 26 years of teaching, she had been teaching the foundation phase most of the time. She would also teach one or two subjects in senior phase but that was a long time ago. The Second Respondent started teaching at the school in 2005 after she had already arrived. She does not recall the Second Respondent teaching the foundation phase, but the Second Respondent mostly taught in the senior intermediate phase in grade 7. She testified that in 2005, she was appointed as a senior primary educator. She also acted as Head of Department at the school to lead the foundation phase. She acted for the acting post for a period of 17 months. The Second Respondent did not apply for the acting post because she was an educator in the senior phase and the post was for educators in the foundation phase only. Therefore, she has more managerial experience in foundation phase than the Second Respondent. She referred to bundle “A1” which shows that the Second Respondent had never been part of foundation phase. The bundle reflects the more recent years that the Second Respondent had not taught in the foundation phase going back to 2018. Based on the requirements for the advertised post, one needed to have the qualification of teaching and experience in the phase to meet the minimum requirements. The Second respondent did not meet those minimum requirements. During cross examination, she agreed that she was shortlisted, interviewed and was fully considered for the post. She also admitted that she was not present during the interview of the Second Respondent and therefore she would not know how the Second Respondent performed at the interviews. She agreed that she was not denied an opportunity to compete for the post. She stated that she does not believe that the entire process was unfairly conducted, but the scoring was done according to what the panel wanted for that position despite her good performed at the interviews.

15. The second witness Gugu Pretty Girl Bhengu testified that she is a foundation phase teacher at Port Shepstone Primary School and she has been teaching at this school for 15 years. The document marked bundle A1 was given to them by Govender every time they were given notes. She is number 4 on the list. The Applicant is number 2 and not sure about the Second Respondent. The document was given to them so that they would be able to change grade every year as per their agreement. She confirmed that this was a full and final list of the educators and since her arrival at the school there was never a situation where educators would be exchanged from one phase to another. She added that the Second Respondent was currently the foundation phase H.O.D and her supervisor was Miss Mpofana. The documents were given to them because some teacher wanted to teach one class whereas they are supposing to rotate the grades. She could not recall if there was a teacher left out in this list and affirmed that all teachers who were taught in foundation phase were in this list.

16. The third witness Desriee Moodley testified that she is currently a foundation phase teacher at Port Shepstone Primary School for 28 years and has been teaching in foundation phase only. The document in bundle A1 shows the grades that educators have taught previously. Their HOD was M M Naidu and GG Govender and she was number 3 on this list. It also showed their distribution in the grades and the years they spent on each grade for an equal amount of work to be allocated to them. According to his knowledge, the Second Respondent had not taught in the foundation phase. In 2012, they held various meetings as teachers of the foundation phase to discuss matters of interest to them, but the Second Respondent was not present in those meetings. There were instances previously where teachers would be required to teach in the foundation phase from senior phase. However, he could not recall the Second Respondent being one of them. Bundle A1 document consisted of form teachers.


First and Second Respondents’ case


17. The First and Second Respondents called five witnesses in support of their case viz: the Nirvara Manawar, Roshin Audan, Saleem Hoosen, Anandh Bardrinath and Meera Moodley.

18. The Second Respondent, Nirvara Manawar, testified that she is the incumbent of the post in question. She met the minimum requirements as per the post requirements. The requirements were that she needed to have 3/4 years qualification, 3 years of teaching experience and at least two years of teaching experience in the relevant phase which all she did have. She received her qualification in the Springfield College of Education in 1997. She had number of years teaching in foundation phase. She started when she was a temporary educator up to the time when she was permanently employed. Therefore, her experience was more than what was needed by the post. She was the author of Bundle B1 document which is an affidavit confirming the years she had taught in the foundation phase. According to this document, she taught in the foundation phase since 2005 at Port Shepstone and she was teaching Afrikaans and life skills from grades 2 to 7. Therefore, she had the required experience in foundation phase as required by the bulletin. She was never allocated any class in foundation phase from the first year. But she was told to teach any class regardless of the phase and regardless of the qualification should a need arise. She was also the author of Bundle B3 which shows the number of years she taught the foundation phase. She stated that she only came to the knowledge of bundle A1 when it was submitted as evidence in the proceedings last year. It appears to be a record of teachers who are form teachers. Form teachers are responsible for administration of the class as well as teaching most of the subjects in that class. During cross examination, she stated that she had obtained an education diploma specializing in mathematics and natural sciences. It is a senior primary because she completed it at a college. She did not have education qualification which is specifically relevant to the foundation phase or any professional development relating to the foundation phase. However, she did have teaching experience in foundation phase and she confirmed having 3 years educational qualification required by the post. The minimum requirements did not require her to have a qualification for the foundation phase. She had a total number of 21 years of teaching experience.


19. The second witness Mrs Roushine Audan testified that she is presently a retired teacher who taught at Jai Hindi Primary School. She has 30 years of experience in the same school. She knows the Second Respondent as student teacher at the school. When she started teaching, the Second Respondent was amongst the first batch of student she taught in 1979. After the Second Respondent had obtained her teaching qualification, she was employed by the school to replace a teacher who was on leave in foundation phase. The Second Respondent worked under her when she was appointed as the Head of Department in foundation phase in the late 1990’s. When their teacher returned from leave, the Second Respondent took posts from the other schools but she confirmed that she was there at the school. During cross-examination, she stated that she did not recall the exact month the Second Respondent started teaching because it was a long time ago and she is now aging and her memory no longer serves her well. Nonetheless she confirmed that the Second Respondent was officially appointed at the school.

20. The third witness Mr Saleem Hoosen testified that he is employed as the deputy principal at Port Shepstone Primary School. She has been employed as such for the past for the past 28 years. He was in charge of allocation of teachers in junior, intermediate and senior phase. In 2005, he needed a teacher to teach Afrikaans in the foundation phase. Consequently, he moved the Second Respondent to teach grade 3. He was not familiar with the list of teachers in bundle A1. But there were other teachers who taught the foundation phase and who did not appear on the list such, F Desai, who was a form teacher for grade R.

21. The fourth witness Anandh Badrinath testified that his son was taught by the Second Respondent in 2005. He confirmed that the affidavit in bundle B1 was deposed by him. During cross examination, he added that Second Respondent was a junior primary teacher for grade 1 to 3 and was in both grades.

22. The fifth witness Meere Moodely testified that she was deployed by her union NAPTOSA to observe the interview process of the post concerned. According to her, the selection processes was fair. She would not have appended her signature if the process was not fair. She had a lot of experience as she had attended plus minus 80 to 100 interviews. She confirmed that she did not attend the shortlisting process.

CLOSING ARGUMENTS

23. Both, the Applicant’s and the First Respondent’s representatives submitted written closing submissions. I would not repeat their submissions herein, but I have considered their submissions in my analysis below.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

24. In these proceedings I am required to decide whether the First Respondent’s failure to promote the Applicant to the position of the Foundation Phase Departmental Head is an unfair labour practice related to promotion as envisaged by section 186 (2) (a) of the Act.

25. The general rule applicable to all civil litigation and arbitrations is that whoever alleges a fact must prove it on a balance of probabilities. In David Johan Randles v Chemical Specialities Case No D28610, the Labour Court held, with reference to Pillay v Khrishna 1946 A 946, that – “if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), it was held that the overall onus always rests on the employee to show the existence of an unfair labour practice. Therefore, the Applicant bears onus to prove that the First Respondent committed an unfair labour practice against her.

Whether the Respondent’s failure to promote the Applicant was unfair

26. In terms of section 186 (2) (a) of the Act, an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving- unfair conduct by an employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits.

27. In City of Cape Town v SAMWU obo Sylvester and Others (2013) 34 ILJ 1156 (LC) it was held that an overall test in an unfair labour practice related to promotion is one of fairness. In deciding whether the employer acted unfairly in failing or refusing to promote the employee it is relevant to consider the following:

• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; or
• Whether the employer’s decision was arbitrary, or capricious, or unfair; or

• Whether the employer failed to apply its mind to the promotion of the employee; or

• Whether the employer’s decision not to promote was motivated by bad faith;

• Whether the employer’s decision not to promote was 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;

• Whether the employer’s decision not to promote was taken in a biased manner.

28. In Apollo Tyres South Africa (Pty) Ltd v CCMA and Others (2013) 34 ILJ 1120 (LAC), at paragraph 53, it was held that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended

29. In the present case, the Applicant’s challenge to the First Respondent’s failure to promote her is premised on two grounds. Firstly, that the Applicant had more managerial experience than the Second Respondent. Secondly, that the Second Respondent did not actually meet the minimum requirements for the post because she did not have a minimum of two years teaching experience at the foundation phase. It was common cause that one of the minimum requirements was that the candidates must have a minimum of two years teaching experience in the foundation phase. It was common cause that the Second Respondent performed better than the Applicant at interviews as she was ranked number 1 whilst the Applicant was ranked number 2. It was also common cause that both, the Applicant and the Second Respondent, were recommended for appointment but the head of department decided to appoint the Second Respondent based on the interview rankings. The only issue in dispute was whether the Applicant was the most suitable candidate for the job, in particular, whether the Applicant had more managerial experience than the Second Respondent and whether the Second Respondent had the minimum of two years teaching experience in the foundation phase.

30. On first issue, the Applicant testified she had more managerial experience than the Second Respondent because she had been acting in the position for about 17 months. She was appointed in the acting position after she had applied and interviewed for the acting position. This was not disputed by the First and the Second Respondents. The Applicant further testified that the Second Respondent did not apply for the acting position because she was an educator in the senior phase only. Therefore, the Applicant had more managerial experience than the Second Respondent which makes her the most suitable candidate for the position.

31. In the case of Ga-Segonyana Local Municipality v Venter NO and Others (JR961/13) (2016) ZALCJHB 391 (11 October 2016), it was held that the fact that an employee has acted for prolonged period in a position does not give rise to an automatic right or entitlement to a promotion to that position. Any such right might arise in exceptional circumstances such as where there is a statutory or contractual right. Even then an employee further has a right to a fair opportunity to compete for the post. In the absence of a right to promotion being established, the employee nevertheless needs to demonstrate that the conduct of the employer in failing to promote him was unfair, taking into account the factors mentioned in Sylvester case supra. In light of this judgement, I am of the view that the fact that the Applicant was acting in the position did not make her to be most suitable candidate for the position than the other candidates. She was still needed to compete for the position with other candidates.

32. On the second issue, whether the Second Respondent had the minimum of two years teaching experienced in the foundation phase, there was a dispute of facts. The Applicant contention was that the Second Respondent did not have such experience as she had never taught the foundation phase. This was disputed by both the First and Second Respondents. The Courts have developed guidelines on how to deal with the dispute of facts in a particular case. In SFW Group Ltd and Another vs Martel et Cie and Others 2003 (1) SA 11 (SCA), it was held that in order to come to a conclusion on the disputed facts the court must make findings on the credibility of various factual witnesses, their reliability and probabilities. In Sasol Mining (Pty) Ltd vs Commissioner Ngqeleni & Others (JR1595/08) (2010) ZALCJHB 3(1 October 2010), it was held that the proper approach when resolving factual dispute is to make findings on the credibility and reliability of witnesses, which in turn entails finding on the witnesses’ condor, demeanor, contradictions in their evidence and an assessment of the probability of their testimony.

33. In the present case, the Applicant relied on the documents that was marked bundle A1 and she testified that this document had a list of all educators who taught the foundation phase at the school. The Respondent had never been one of educators who taught the core subjects in the foundation phase and she could not recall the Second Respondent teaching the foundation phase. However, later on in her evidence, she testified that the Second Respondent was not on the list because she had never taught the foundation phase. In my view, the Applicant testimony about bundle A1 was not consistent. The Applicant herself was not sure whether bundle A1 had all educators who had taught the foundation phase or that the Second Respondent had ever taught the foundation phase. This is evident from the fact that she later on stated that she could not recall the Second Respondent teaching the foundation phase.

34. The Applicant further relied on the evidence Gugu Pretty Girl Bhengu and Desriee Moodley. Bhengu confirmed that the educators in A1 were the ones who taught the foundation phase at the school. Initially, she confirmed that A1 was the full and final list of educators who taught the foundation phase. However, later on, she stated that she could not recall if there were any teachers that were left out of the list. In my view this is also serious inconsistency in the evidence of the witness. I am failing to understand how can some who was initially so adamant that the list in bundle A1 was a full and final list of all educators who taught the foundation phase, would, when later confronted with the same question again change tunes and state that she could not recall whether there were any other educators that were left out.

35. Moodley, the Applicant’s third witness, also confirmed that the only educators who taught the foundations phase at the school were the ones appearing in bundle A1. Moodley went on to say that the educators in A1 even had various meetings amongst themselves to discuss matters of interest to them; the Second Respondent had never attended those meetings. However, she conceded that the list in A1 only consisted form educators who were responsible for certain subjects in the foundation phase. She also testified that there were instances where educators from the senior phase were required to teach foundation phase but she could not recall the Second Respondent being one of them. In my view, this witness was also not consistent in her evidence. She also changed tunes about her evidence about annexure A1 being the only list of educators who taught the foundation phase. I say so because later on in her evidence, she testified that there were instances where educators from the senior phase would be required to teach the foundation phase which was contrary to her initial evidence.

36. On the other hand, the Second Respondent testified that she had a number of years teaching the foundation phase from her state paying temporally post to permanent post. Therefore, her experience was more than what was needed for the post. She produced a document marked B1 which she had prepared and she stated that she taught foundation phase from 1998 to 2012. She started at Jai Hind Primary School for four months teaching grade ones. In 1999, she taught intermediate and foundation phase at Lousiana Primary School and she was teaching grade 3 and 4. From 2005 to 2012, she was teaching grades 3 to 7 and she was teaching Afrikaans and life skills. She was never allocated a class as she was told to teach any class within the foundation phase. In this regard, she referred to bundle B3 which was the document she had also prepared and which depict the periods in which she had taught the foundation phase. According to B3, she had taught the foundation phase for six years nine months. In this regard she was very bold in her evidence and she stood her ground even during cross examination. Her evidence in this regard was corroborated by Roshin Audan and Saleen Hoosen.

37. Audan testified that she was a retired educator who taught at Jai Hind Primary School. Few years after the Second Respondent had qualified as an educator, she was employed at her school to replace educators who had gone on leave for two terms. She taught all grade R and grade ones and she was teaching all the foundation phase subjects. Hoosen, the deputy principal, testified that he was responsible for the allocation of educators at junior, intermediate and senior phase at Port Shepstone primary. In 2005, he needed a teacher to teach Afrikaans. He then moved the Second Respondent to teach grade 3. He stated that there were other educators who were also teaching the foundation phase and who did not appear on the list in bundle A1. One of them was F Desai. This was not disputed by the Applicant. Hoosen was also very bold in his evidence and he stood his ground even during cross examination.

38. In light of the inconsistencies in the Applicant’s case about bundle A1 being the list with all the educators who taught the foundation phase, I am of the view that it is highly probable that the Second Respondent taught the foundation phase for a period more than two years and thus met the minimum requirements of the post.

39. In the circumstances the Applicant has failed to discharge the onus that she was the most suitable candidate for the post and her claim for unfair labour practice relating to the provision of benefits should fail.

AWARD

40. The none appointment of the Applicant, Anita Mohan, to the position of Foundation Phase Departmental Head at Port Shepstone Primary School was procedurally and substantively fair.

41. The Applicant’s claim for unfair labour practice relating to promotion is hereby dismissed.

Scelo V Mkhize - Panelist