ELRC618-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON THE 05 MAY 2023

Case Number: ELRC618-22/23LP
In the matter between: -

SADTU obo Malatji Besty Applicant

And

Limpopo Department of Education First Respondent

Ntsoane LD Second Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held in Polokwane on the 05 May 2023. The Applicant was represented by Mr. Thobja Monyai from the South African Democratic Teachers Union (“SADTU”) whereas the respondent was represented by Mr. Mokgoba Matlou, who is employed by respondent and is responsible for Labour Relations.
2. Both parties submitted bundles of documents which were admitted as evidence and were marked as “R1” and “A1” and “A2” for the Respondent and the Applicant respectively. Bundle “R1” contained some 74 pages, while bundle “A1” contained 75 pages and “A2” contained only four (4) pages.
3. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments by close of business day on the 12 May 2023. Both parties have submitted detailed submissions which were considered in the award. I am indebted to both parties for their helpful concise heads of arguments.

THE ISSUE IN DISPUTE
4. The issue in dispute to be determined is whether the Head of Department properly exercised his/her discretion by not appointing the Applicant to the position of Principal at Mashiagoana Primary School, and/or whether the conduct of the HOD by not appointing the Applicant constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

5. The Respondent advertised the position of Principal under circular No.1 Volume 1/2022. Subsequently, the School Governing Body (“SGB”) recommended for appointment the incumbent, a certain Mr. Ntsoane LD as the first (1st) choice preferred candidate, and Mr. Malatji Besty as the second preferred candidate. Following the recommendation of the SGB, the HOD appointed Mr. Ntsoane. The Applicant takes issue with the discretion and/or the conduct of the HOD, alleging that such discretion was not exercised properly and or that it’s constituted an unfair labour practice.
6. The Second Respondent, Mr. Ntsoane LD was joined into the proceedings but did attend nor participate in the arbitration.
7. The arbitration was then set down for the 05 May 2023 before me, and the matter was digitally recorded.



SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

8. Mr. Malatji Besty testified under oath, and his evidence can be summarized briefly as follows. That the interview committee ranked him position number one (1) and the incumbent as position number two (2) but the SGB after its deliberations, ranked him position number two (2) and the incumbent position number one (1). That the SGB’s conduct was unfair, and such unfairness was permeated the decision of the HOD in appointing the incumbent, Mr. Ntsoane LD.
9. Mr. Malatji testified further that he has many years of experience at management level compared to the incumbent, having previously held the position of Deputy Principal from the year 2017, and that he was overall the best candidate for the position.
10. Mr. Malatji testified further that he holds a Honours degree qualification in teaching, which is a post graduate qualification, and that he met the minimum requirements for appointment and/or promotion to the position in dispute, being the Principal of Mashiagoana Primary School.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
11. The Respondent’s first and only witness, Mr. Collis Mathabatha, testified under oath, and his evidence can be summarized briefly as follows. That he holds the position of Assistant Director responsible for corporate services, which includes appointments, transfers, promotions and other ancillary responsibilities.
12. Mr. Mathabatha testified Mr. Ntsoane LD was recommended at position number one (1) by the SGB for appointment, followed by the Applicant at position number two (2). The SGB recommended three (3) other candidates at positions three (3), four (4) and five (5).
13. Mr. Mathabatha further testified that in as far as he knows, the SGB need not give reasons for their recommendations to the HOD. He further testified that the HOD applied her mind to the recommendations of the SGB, and appointed the incumbent in line with the recommendations of the SGB.

ANALYSIS OF EVIDENCE AND ARGUMENT
14. The question for determination is very narrow. Did the HOD exercise her discretion properly in appointing the incumbent as per the recommendations of the SGB? The Applicant, while acknowledging the powers of the SGB to interview and recommend their preferred candidate to the HOD for appointment, takes issue with the reasons advanced by the SGB in their motivation for appointing the incumbent.
15. In recommending the incumbent, Mr. Ntsoane LD at the pole position, the SGB wrote that, “(1) he is male and addresses equity, (2) he is economically active (3) he is highly educated with Masters degree (4) he acted as principal with improved results (5) he was able to discipline learners (6) he has 26 years teaching experience (7) that he knows dynamics of the community”.
16. The Applicant attacks the reasoning of the SGB, more so that he too is male, economically active, and like the incumbent, his appointment would have addressed equity too. However, the Applicant could not fault the SGB in respect of other reasons, being that the incumbent has over 26 years teaching experience, and that he holds Masters degree in teaching.
17. In contrast, the Applicant has over 14 years teaching experience and a Honours degree as his highest qualification.
18. At the end of the arbitration hearing, I asked both parties to address me on whether, the discretion and/or conduct of the HOD can be faulted save for reasons advanced by the SGB? The HOD, in accepting the recommendation of the SGB, noted that “the appointment of Mr. Ntsoane LD is supported considering the contribution he had already made at the school”. It is telling that the HOD applied his/her mind to the fact that the incumbent had already made contribution to the school, and did not merely rely on reasons advanced by the SGB. Similarly, even if the reasons advanced by the SGB were to be faulted, when one compares the candidature of the incumbent, and that of the Applicant, it is difficult to come to the conclusion that the Applicant is a better candidate than the incumbent. The Applicant has conceded under oath that the incumbent has 26 years’ experience in teaching in contrast to his 14 years, and that the incumbent has Masters qualification compared to his Honours degree. Further, the Applicant could find no fault in the candidature of the incumbent himself, not the conduct of the HOD in this case. IT is common cause that is promotional dispute, it is the conduct of the appointing authority that is challenged. In this case, the Applicant could identify no conduct that can be faulted.
19. Mr. Monyai for the Applicant referred me to section 6(3) of the Employment of Educators Act which reads as follows:
“(b)The Head of department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-
(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed
(ii)the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators
(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence
(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1) of the Act
(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department”.
20. Section 6(3) b and c of the Act are relevant to assess whether the discretion of the HOD was properly exercised in the appointment of the incumbent. In this case, the SGB recounted various reasons for recommending the appointment of Mr. Ntsoane LD. Some of the reasons were not helpful, however, comparing the profiles of the two candidates, and having had regard all the evidence before me, I cannot find that an unfair labour practice was committed against the Applicant.
21. The question is whether that conduct of the employer is enough to warrant interference with the prerogative of the employer to appoint a candidate of their choice? The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides. Having considered all the evidence, I could find nothing that evinces an irrational decision, bias, or mala fides from the HOD.
22. It is trite that in unfair labour practice dispute the onus is on the Applicant to prove their case on a balance of probabilities. In my view, the Applicant has failed to discharge his burden to prove on a preponderance of probabilities that the Respondent committed an unfair labour practice against him.

AWARD
23. I therefore find that the Respondent, Limpopo Department of Education had not committed an unfair labour practice against the Applicant, Malatji Besty.

24. The application is hereby dismissed.

Thapelo Mathekga
(ELRC PANELIST)