ELRC366-22/23WC

Commissioner: Jacques Buitendag
Case No.: ELRC366-22/23WC
Date of Award: 12 June 2023
In the matter between:

NAPTOSA obo C KOOPMAN Applicant

And

EDUCATION DEPARTMENT OF WESTERN CAPE 1st Respondent

And

A ROSSOUW 2nd Respondent

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The arbitration hearing under the auspices of the ELRC took place virtually on the Zoom platform on 16 March 2023 and 19 May 2023. The proceedings were digitally recorded.

2. Mr. F Tassiem, an official of Naptosa represented the applicant, Ms. Koopman. Ms. V Phillips, a Senior Labour Relations Officer represented the 1st respondent, the Education Department of Western Cape. The 2nd respondent, Ms. A Rossouw was represented by an official of NAPTOSA, Ms. K Lee.

3. I received the written closing arguments on 29 May 2023.

THE ISSUE IN DISPUTE

4. I must determine whether the conduct of the 1st respondent constitutes an unfair labour practice concerning promotion. If so, I must determine the appropriate remedy.


BACKGROUND TO THE ISSUE

5. The applicant is a post level 3 educator at Lentegeur School for Learning Support Education Need (LSEN). The post of Principal at Ocean View School for LSEN became vacant on 01 July 2021. The post was advertised in Vacancy List 3 of 2001 as Post Number 1394.

6. The applicant and the 2nd respondent was shortlisted and invited to an interview on 16 November 2021. The applicant scored 88% and the 2nd respondent 87% during the interviews.

7. The candidates then underwent a Competency Based Assessment (CBA). The assessment revealed the applicant was average in inductive reasoning and was seen as a weak match in respect of the behavioral competencies for the post, and the 2nd respondent as below average in inductive reasoning and reasonably matched in respect of a behavioral competencies.

8. The School Governing Body (SGB) nominated the applicant as their 1st choice candidate and the 2nd respondent as their 2nd choice candidate.

9. In terms of Chapter 3, subsection 6(f) of the Employment of Educators Act, 76 of 1998, the Head of Education has a discretion to appoint any suitable candidate on the list of nominees presented by the SGB despite the order of preference.

10. On 13 June 2022 the Head of Education approved the appointment of the 2nd respondent and concluded that should she not accept the appointment, then the applicant be appointed in the post. The 2nd respondent accepted the appointment.

11. The applicant now prays for the appointment of the 2nd respondent to be set aside and that she be appointed to the position. The 1st respondent denies committing an unfair practice concerning promotion.

SUMMARY OF EVIDENCE AND ARGUMENT

12. I have considered all the evidence and argument presented in this arbitration, but because section 138(7) of the Labour Relations Act, 66 of 1995 (LRA) requires an award to be issued with brief reasons for the findings; I shall only refer to the evidence that I regard as necessary to substantiate my findings in the determination of the dispute.

The applicant’s evidence
13. Ms. Koopman gave a overview of her qualifications and experience in the education of children with special needs. She is qualified to teach in a special school environment and is the Deputy Principal at Lenteguer School since May 2020. She advised and assisted the 1st respondent on the curriculum for LSEN in 2016.

14. Ms. Koopman explained that she is part of the community and has much to offer the school. Ms. Koopman testified that she outscored the 2nd respondent during the interviews, was the preferred candidate of the SGB and ought to have been appointed.

15. Mr. M Mbatyazwa explained that he was a member of the SGB of Ocean View School for LSEN. It was agreed that the Competency Based Assessment (CBA) of the candidates would not be considered in the appointment process. Mr. Mbatyazwa testified that the school needs a Principal that is involved with the community and that the SGB nominated the applicant as its preferred candidate. The Circuit Manager informed him that the 2nd respondent was appointed as Principal. He testified that during his tenure at the school it was a privilege to work with the 2nd respondent.

The 1st respondent’s evidence

16. The Circuit Manager, Ms. Jacobson testified that she informed the SGB of the 2nd respondent’s appointment and that the SGB lodge no complaints about the appointment.

17. Mr. M Cronje, Chief Director: People Management Practices, explained that because of the insignificant difference in scoring between the candidate focus shift to the questions that was posed to the applicants during the interviews. He referred to two questions that related to decision making, management and leadership abilities, which with reference to Chapter B of the PAM are important characteristics required of a principal. On the question relating to learner behavior, which was interview question two, the 2nd respondent scored a point higher than the applicant and on the question relating to conflict management, interview question 6, the 2nd respondent scored two points higher than the applicant.

18. Mr. Cronje submitted on these two questions that tested the decision making and management skills required of a principal the 2nd respondent’s scored higher than the applicant. It was thus decided that the 2nd respondent is the most suitable candidate for appointment.

Closing arguments
19. The written closing arguments of the parties are part of the record. I have taken it into account, and I don’t find it necessary to repeat it here in full. If I do not refer to a particular argument in this summary, it does not mean that I did not consider it.

20. Mr. Tassiem submitted that Ms. de Klerk indicated in her motivation on page 50 of the bundle of documents that the applicant has good people skills, is hardworking, a team player and lead by example. She is a good communicator and has a passion for education and is very reliable. He argued that based on the evidence of Mr. Mbatyazwa and the abovementioned motivation that the decision to appoint the 2nd respondent was irrational.

21. Both Ms. Phillips and Ms. Lee argued that the appointment of the 2nd respondent was rational and fair.

ANALYSIS OF EVIDENCE AND ARGUMENTS

22. Section 186(2) of the Labour Relations Act, 66 of 1995, defines an unfair labour practise any unfair act or omission that arises between an employer and an employee involving inter alia unfair conduct by the employer relating to promotion. The onus is on the applicant to prove unfair conduct on the part of the Respondent in relation to promotion.

23. I will begin by setting out the principals to consider in dealing with promotion disputes.

24. In SAPS v SSSBC & Others (2010)/P426-08 (LC) the Labour Court amply sets out the governing law on promotional disputes and goes on providing the following principles to determine unfair conduct relating to promotions:

• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion
• Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint. See also PSA obo Department of Home Affairs (1999) 6 BLLR 577 (CCMA) where it was held that “...it must be stated that an employer cannot be said to have committed an unfair labour practice simply because it makes an unwise choice of candidate…”

25. In SARS v SSSBC & Others (2010 P54-09 (LC) Basson, J held as follows:
• the decision not to promote should be exercised in a manner that does not constitute an unfair labour practice;
• the definition of an unfair labour practice refers to any unfair act or omission that arises between an employer/employee involving unfair conduct relating to promotion in terms of section 186(2)(a) of the LRA ’95. This definition has been interpreted by the LAC in Department of Justice v CCMA & Others (2004) 4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion;
• the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promote is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion;
• the role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Contra: see Minister of Safety & Security v SSSBC & Others (2009) 18 LC 1.15.52 where it was held that an employer does not per se have an unfettered discretion when deciding whom to promote/the employer is not shielded from blatant forms of unfair labour practices.

26. In the more recent decision in City of Tswane Metropolitan Council of South Africa v South African Local Government Bargaining Council [2011] 12 BLLLR 1176 (LC) the judge referred with approval to the two-stage approach outlined in Ndlovu v CCMA and Others (2000) 21 ILJ 1653 (LC) to determine if the failure to promote an employee was unfair, namely, that:
[11] ...it can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously, a person who is not so qualified cannot complain if they are not appointed.
[12] the next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational, it seems to be that no question of unfairness can arise.

27. The applicant argued that the 1st respondent decision to appoint the 2nd respondent was irrational.

28. It is important to consider what an irrational decision entails. An irrational decision is a decision that goes against or counter to logic. Whist rational decisions are carefully considered, irrational decisions are based on intuitive judgment. Irrational decisions are usually made in haste and the outcomes are not properly considered.

29. Both candidates meets the minimum requirements of the post and both fit the same equity profile. The SGB nominated the applicant as its 1st choice and the 2nd respondent as its 2nd choice candidate. Both the 2nd respondent as well as the applicant were thus suitable candidates for appointment according to the SGB. The legislature had given the HOD the power to appoint anyone of the recommended candidates or not make an appointment at all (as referred to in par. 9 above).

30. It is evident from Mr. Cronje’s testimony that careful consideration were given to which of the two candidates should be appointed taking into account all the information presented to the 1st respondent about the candidates as well as the appliable legislation. With an insignificant 1% interview score margin between the candidates, it cannot be held to be irrational for the 1st respondent to have delve deeper into the interview questions in order to compare the two candidates. Whilst technical knowledge and -experience are important, regard must be had to the fact that a principal post carries with it a large degree of leadership and management qualities. And it was on the two interview questions that tested these aspects that the 2nd respondent performed better that the applicant.

31. There is no evidence of nepotism, outside interference (meddling) , or partiality in the appointment of the 2nd respondent. Moreover these is no evidence that the HOD had acted in bad faith. Whist the applicant was also a suitable candidate and it cannot be held that the HOD’s decision to appoint the 2nd respondent was irrational. I find that the HOD’s decision to promote the 2nd respondent does not warrant interference and that the 1st respondent has not committed an unfair labour practice concerning promotion in this instance.

AWARD

The 1st respondent did not commit an unfair labour practice concerning promotion. The applicant’s application is dismissed.


ELRC Panelist: Jacques Buitendag