ELRC712-21/22NC

Panelist: Selolong Mosoma
Case No.: ELRC712-21/22NC
Date of Award: 29 May 2023

In the ARBITRATION between:

R Crow
(Union / Applicant)

and

Department of Basic Education: Northern Cape Provincial Government (1st Respondent)

S Walker (2nd Respondent) 
(Respondent)

Applicant’s representative: Adv Tshabalala MS
Applicant’s address: Briefed by MSM & Associate

Respondent’s representative: Gavin George
Respondent’s address: Department of Education Northern Cape




ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award in the arbitration matter between Ruben Crow, the Applicant and Department of Education Northern Cape Provincial Government, the 1st Respondent and S Walker 2nd Respondent.

2. The arbitration, took place on 15 May 2023, at the Respondent’s premises in Upington, ZFM District
3. The Applicant appeared in person and represented by Advocate Tshabalala MS, briefed by MSM & Associates. The Respondent was in attendance and represented in the proceedings by Mr. Gavin George and employee of the 1st Respondent. The second Respondent was also in attendance and represented by her union official Ms. Amanda Clarke, of Suid Afrikaans Onderwysers Unie.

4. Both parties submitted a bundle of documents on record.

5. The proceedings were conducted in English and mechanically recorded.

ISSUE TO BE DECIDED

6. The issue to be decided was whether the Respondent committed an alleged unfair labour practice in relation to promotion.

BACKGROUND TO THE DISPUTE

7. The Applicant is currently employed by the Respondent as an educator at Carlton Van Heerden High School in Upington.

8. The Applicant applied for a vacant position of principal at Carlton Van Heerden High School, and he was shortlisted and interviewed, but not appointed.

9. The 1st Respondent, Department of Education Northern Cape, appointed the 2nd Respondent Ms. S Walker to the position of school principal with effect 01 January 2022.

10. The Applicant was aggrieved by the 1st Respondent’s conduct or omission, he then approached the Council and the matter remained unresolved at conciliation.

11. The natter was referred for an arbitration hence the arbitration award.

12. The Applicant sought to be appointed on the same position of principal post and compensation.

SURVEY OF EVIDENCE AND ARGUMENT

13. The Applicant testified as follows, under oath:

14. Mr. Crow Ruben testified that the post of principal was advertised, and he responded to the advert. The advert indicated that the candidates must be in possession of 04 years teachers’ qualification and 07 years actual teaching experience, people management, finance management, leadership skills. He averred that he has all these qualities and qualifications that’s why he applied for the post.

15. He stated that he was in possession of 03 years diploma in education, higher diploma in education, BA honors in Theology, Masters in pastoral studies and certificate in senior management development.

16. It was his evidence that he has 33 years of service as a teacher and 07 years of acting as Head of Department.

17. On 01 September 2021, he was invited for interviews of the principal post. According to him he answered all the question posed to him and the interview was great.

18. It was his evidence that he never received any feedback after the interviews, and he only learned about the appointment when the principal was announced.

19. He stated that he felt aggrieved and lodged a grievance with the Respondent which was not resolved to his satisfaction. He further stated that he requested reasons why he was not appointed from the Respondent without any success.

20. He averred that he attained or scored a score of 85,8 during the interviews and 2nd Respondent has attained a score of 79,4. He testified that he deserves to be appointed to the post of school principal owing to his experience, qualifications, and his performance during the interview process.

21. It was his testimony that the decision of the Head of Department of not appointing him was unfair. Lastly, he stated that the Head of Department disregarded the recommendations of the governing body.

22. Under cross-examination he conceded that he was not part of the school management team. He denied all other facts put through by the Respondent representative.

23. The 1st Respondent’s case;

24. The first witness of the Respondent Mr. Mzwandile Charles Mothelezi testified under oath as follows;

25. He testified that he is currently employed by the Respondent as Director Human Resources Management Practice and Administration.

26. He stated that his duties include amongst others, overseeing of four sub-directorates namely;

a. Conditions of remunerations for school-based educators
b. Conditions of service for office-based educators
c. Recruitment, selection, and appointment
d. Employee health and wellness

27. He explained the recruitment and selection process for its inception stage until the final stage which includes the role of the school governing body in the process which includes the profiling of the post, making of recommendations, setting up selection committee, interviews preparations and recommendation to the Head of Department in order of preference.

28. The school governing body also has a role of providing motivation for each candidate on the NCK forms (Score cards). Thereafter both district and provincial offices will perform quality assurance of all the recruitment process documents.

29. He testified that he was the enquiry person on the appointment letter, and he advises the Head of Department with regards to the appointments.

30. It was his evidence that the Employment of Educators Act says 03 names must be given to the Head of Department by the school governing body. And any of the three is appointable.

31. He testified that the score cards were not only focusing on the scores but also about race and gender of the candidate.



32. He stated that the school governing body motivation on each of the candidates were not specific but generic. He further stated that the school governing body unanimously agreed on the order candidates.

33. He stated that the Head of Department decided to appoint the 2nd Respondent based on her ability which is also referred to in the Employment of Educators Act., the 2nd Respondent’s curriculum vitae indicated that she was a deputy principal and acted as a school principal. She was already at the school management team level, and she was the only the candidate.

34. He testified that when the 2nd Respondent was appointed, they looked at school management team, circuit, and transformation at the Department. The ability to function at the level of school management team and the 2nd Respondent was already at that level.

35. He further testified that the decision was based on ability, transformation, and leaner profile of the school.

36. Lastly, he testified that the decision to appoint he 2nd Respondent was a very sound one, without any malice and they took into consideration the prescripts and legislation.

37. Under cross-examination he conceded that he made recommendation to the Head of Department that the 2nd Respondent be appointed but that was not done in writing.

38. He stated that the Head of Department considered the following factors when appointing the 2nd Respondent; the ability to function on that level, qualifications, equity, and also that the 2nd Respondent was amongst the top three which means that she was suitable.

39. He conceded that nowhere in the advert it was stated that both equity and ability will be considered during the appointment.

40. Lastly, he denied all other acts that were put through by the Applicant’s representative.

41. There were no submissions on behalf of the 2nd Respondent because she indicated that she was in support of the 1st Respondent’s case.

ANALYSIS OF EVIDENCE AND ARGUMENT

42. I have considered all evidence presented by the parties, however, because of section 138 (7) of the LRA requires brief reasons, I have only referred to the evidence that I regards as necessary to substantiate my findings and determination of the dispute.

43. The LRA under section 186 (2) (a) defines an unfair labour practice as meaning “any unfair act or omission that arises between an employer and an employee involving an unfair conduct by the employer relating to the promotion, demotion, probation….”

44. The obligation in terms of section 186 92) of the LRA is act fairly towards the employee in the selection and promotion process but taking into account that it is the prerogative of the employer to make appointments. The exercise of that prerogative is nonetheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to drawing of inference of bad faith.

45. The onus to establish that conduct complained of that constitutes an unfair labour practice within the meaning of section 186 (2) of the LRA rests on the employee. The employee must therefore be able to lay evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction with the outcome of recruitment or selection process is not sufficient to sustain that claim. In order to succeed with the claim related to promotions ort failure to appoint, an employee must inter alia, demonstrate that as against the successful candidate.

a. he/she met the inherent requirements of the position;
b. He/she was the best candidate for the position’
c. That not being promoted caused an unfair prejudice to him/her;
d. and that there is a casual connection between the unfairness complained of and the prejudice suffered.

46. Section 23 (1) of the Constitution provides that “Everyone has the right to fair Labour Practice”.

47. The overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious consideration on the part of the employer, or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory, whether there were insubstantial reasons for the employer’s decision not to promote, whether the employer’s decision not promote was based upon a wrong principle or was taken in a biased manner, whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.

48. The unfair conduct the Applicant alleges relates to an unfair promotion in that he was not promoted or appointed to the post of school principal at Carlton Van Heerden High School.

49. It is common cause that the position was advertised, the Applicant applied, and the selection process was instituted. It is further common cause that the Applicant was shortlisted together with other candidates and the 2nd Respondent.

50. It is also common cause that the school governing body allocated or scored the Applicant score of 85,9 and 2nd Respondent a score of 79,4 respectively.

51. In the matter on hand, it is common cause that the school governing body recommended the candidates to the Head of Department in terms of their respective scores.

52. It is also common cause the 2nd Respondent was appointed on the post of school principal of Carlton Van Heerden High School.

53. For the requirements of an advertised post to be met therefore, cognizance must be taken of the objective of the policy to ensure that the candidate who best meets the selection criteria is appointed.

54. The 1st Respondent, Department of Education Northern Cape, set out requirements to be met for the contested post. The fairness of the selection process lay in the screening of all candidates against the set requirements in a similar approach.

55. The selection panel can only consider those candidates that so to say pass muster, that is, those that meet the minimum requirements as set out in the advertisement.

56. The interviewing and assessment procedure was, likewise, prescribed in the detail by the Respondent. The panel was required to put a series of prescribed and approved questions to each candidate, each member of interviewing committee scored the candidates and scores were collated and averaged and aggregate for each candidate thus arrived at.

57. It is imperative and convenient, at this point to set out provisions of section 6 (3) and 7 (1) of the Employment of Educators Act 76 of 1998, since these contain the fundamental prescriptions, both the governing body and the Head of Department, as to how the selection and appointment procedures were to be conducted.

a. Subject to paragraph (m), any appointment, promotion, or transfer to any post on the educator’s establishment of a public school may only be made on the recommendation of the governing body of the public school.
b. In considering the application, the governing body must ensure that the principles of equity, redress and representivity are complied with.
c. The governing body must submit, in order of preference to the Head of Department, a list of-
i. At least three names of recommended candidate, or
ii. Fewer than three candidates I. consultation with the Head of Department
d. The Head of Department must ensure that the governing body has met the requirement in paragraph (b) before making an appointment.
e. If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.
f. Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.

58. It is worth mentioning that there was no evidence placed before me during the arbitration that the interview process was flawed or the school governing body did not fulfil its role in line with the provisions of section 6 the Employment of Educators Act. With that in mind, the Head of Department ought to have attached or attributed substantial weight to the governing body recommendations submitted before her.

59. While I note the Applicant’s case, I have also considered the Applicant’s evidence during the arbitration hearing so as to establish whether there was any unfair conduct or omission by the first Respondent during the recruitment process.

60. I conclude that the Applicant managed to provide solid substantiation considering that the Respondent could not provide any justifiable reasons considered to appoint the second Respondent who did not also dispute the facts before me for consideration. The justifiable reasons provided by the Respondent was that the Head of Department appointed the 2nd Respondent due to the following reasons;

a. ability;
b. she is a female;
c. she was deputy principal of the same school from 2016, until to date, and have more management experience as the other two candidates.

61. The Respondent in the current matter does not encourage a culture of accountability, openness, and transparency in the exercise of Public power and not protecting the integrity of recruitment and selection process. This I say, because there were no reasons provided how the Head of Department arrived at the decision to appoint the 2nd Respondent. The purported reasons provided were those of Mr. Mothelesi not the Head of Department as the accounting officer.

62. As such it was clear that the Head of the Department did not only acted unlawfully in subverting the process but acted unfairly, capriciously and with bias in appointing the 2nd Respondent, this was done under the disguise that the Head of Department exercised her discretion in line with the provisions of section 6 (3) (f) of the Employment of Educators Act. It can be said that the Head of the Department acted in a manner which sought to insinuate that they earmark the position for the 2nd Respondent, whom it then sought to and did appoint into the position. This was based on the Respondent’s evidence which was tendered during the arbitration which was very clear that the Head of Department did not exercise any discretion at all. The decision was arbitrary and capriciously made by the Head of Department.


63. Notwithstanding the fact the its employer’s prerogative of the employer to make appointments, the exercise of that prerogative is nonetheless not immune from scrutiny, as instances of gross unreasonableness in its exercise may lead to drawing of inference of bad faith.

64. There is no evidence on record about the reasons or otherwise of the Head of Department on how she arrived at the decision to appoint the 2nd Respondent. All there is that the governing body recommended three names in order preference to the Head of Department after the interviews. In the end, as I have already alluded to above, it is the employer’s prerogative to appoint, for as long as the employer comply with the basic tenets of fairness, which is, adhere to the minimum requirements of the post, and, where appropriate, appoint the best and suitable candidate.

65. The Respondent’s failure to attach or provide written reasons why the Head of Department took a decision to appoint the 2nd Respondent is the make or break of its own case. The attachment of same was going to shed some light on how the Head of Department exercised her discretion or prerogative in appointing the 2nd Respondent.

66. The Applicant argued that he had requested such written reasons from the Respondent through the process of access to information without any success. Again, the Applicant as the last resort, had subpoenaed the Head of Department as witness to the proceedings to come and provide reasons for appointing the 2nd Respondent.

67. According to Mr. Mothelesi, the 2nd Respondent was appointed based on her ability, she is female, she is currently deputy principal of the school, she is part of the school management team, and she has been acting as the school principal. What I find difficult to understand is why the same reasons provided during the arbitration were not provided to the Applicant when he applied for an access to information. This I say, because it would seem that this critical information only came to light at the current proceedings. The explanation proffered by Mr. Mothelesi on the reasons that informed the Head of Department’s decision is somewhat evasive and to this end, I will not accept it as reasonable. With this in mind, I am of the view that if those were the reasons why such were not provided to the Applicant or at least formed part of the Respondent’s evidence.

68. While I note Mr. Mothelelsi’s testimony regarding the 2nd Respondent being appointed because she is a female, is it important that I must mention that the affirmative action measures only apply when both candidates are suitably qualified for the position in question and because job advertisement on record is silent on the issues of equity requirements to be applied when the position in question was advertised, I am inclined to reject the Respondent’s argument.

69. On the question of acting capacity of the 2nd Respondent, it is trite law that acting in the position does not necessarily guarantee one to be appointed.

70. In the premises, I find that the Applicant has managed to demonstrate that the 1st Respondent committed an unfair labour practice and that he is entitled to the relief sought.
AWARD

71. The appointment of the 2nd Respondent, Ms. S Walker as the principal at Carlton Van Heerden High School is set-aside.

72. The 1st Respondent, Department of Education Northern Cape, is ordered to promote the Applicant, Mr. Ruben Crow, to the position of school principal and pay him the remuneration and benefits applicable to that position and salary level.

73. The promotion referred to in the preceding paragraph shall operate with retrospective effect from January 2022.

74. As the date of this award the additional remuneration and Mr. Ruben Crow as a result of retrospective operation of the promotion, amount to R 214, 472.00 minus such amounts as the 1st Respondent is in terms of the law obliged or entitled to deduct.

75. The 1st Respondent is ordered to pay Mr. Ruben Crow the amount referred to in the above paragraph by no later than 30 June 2023.

76. Failure to comply with the award the amount will accrue interests in line with the provisions of section 143(2) of the Labour Relations Act, act66 of 1995 as amended.

SIGNED AT BLOEMFONTEIN ON THIS DAY OF 29TH MAY 2023.

Selolong Mosoma
ELRC Arbitrator