ELRC826-22/23NW

Commissioner: D Smith
Case No.: ELRC826-22/23NW Date of Award: 14 June 2023

In the ARBITRATION between:

SADTU OBO SAKU, BOITUMELO
(Union / Applicant)

and


FIRST RESPONDENT: DEPARTMENT OF EDUCATION NORTHWEST

SECOND RESPONDENT: THEKISO PAULUS TIRO
(Respondent)

Applicant’s representative: Ms. P T Thekiso

Respondent’s representative: Mr. Martin Keetile

DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 186(2) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard at the Maheking offices of the Respondent on 16 May 2023.

2. The Applicant, Ms. Saku Thalitha Boitumelo (Boitumelo), was represented by Ms. P T Thekiso (Thekiso), an official of the trade union SADTU. The First Respondent was represented Mr. Martin Keetile (Keetile), its SES: Disputes. The Second Respondent, Mr. Thekiso Paulus Tiro (Tiro), represented himself.

3. The process was digitally recorded, and I took handwritten notes.

4. The Parties submitted a 63-page bundle of documents marked A.

5. The Parties concluded a pre-arbitration minute however, it could not be produced at the process.

6. The parties agreed to submit closing argument on 23 May 2023.

ISSUE TO BE DECIDED:

7. Whether the Respondent committed unfair conduct in not appointing Boitumelo in the position of department head.

8. If I find in the positive, I must decide upon an appropriate remedy.

BACKGROUND:

9. The post of department head was advertised. Boitumelo applied and was shortlisted. She scored the highest and was recommended by the School Governing Body. Masiu was, however, appointed.

10. Boitumelo argued that the process had been procedurally flawed as Tiro did not meet the Respondent’s criteria for the position and should not have been shortlisted, and that the panel had relied on new criteria in recommending Tiro.

Facts that are Common Cause

11. Boitumelo and Tiro applied for the post of department head, PL2.

12. The process was regulated by Circular 7 of 2022: VACANCY LIST FOR SCHOOLS PROMOTIONAL POSTS, A3-6.

13. The shortlisting process took place on 10 August 2022, A44. Both were shortlisted.

14. The interview panel ranked Boitumelo in position 1 and Tiro in position 3.

15. Tiro was appointed into the position.

REMEDY

16. Boitumelo sought to be appointed in the role of department head, PL2.

SURVEY OF EVIDENCE AND ARGUMENT:

17. For the purposes of this award, I do not intend, to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

APPLICANT’S EVIDENCE AND SUBMISSIONS

18. Boitumelo testified under oath that:

18.1. The post required GET and FET, English and languages, A7. She was qualified in languages and held an Advanced Certificate in Education in English Education, A38, and an Advanced Certificate in Education in Language in Learning and Teaching, A25.

18.2. The shortlist minute, A44, 45, identified the short-listing criteria as:

“4. Candidate shall have the following:
• REQV13
• Experience (3 Years and above)
• Subject – English and Setswana
• Gender (both are acceptable)”

18.3. Additional criteria were identified as:

“5. Identifying additional criteria:

• Candidate must teach grade 12.
• Most qualified.
• Major Setswana and English.”

18.4. Tiro was not qualified in languages and did not teach Grade 12.

18.5. She and one other educator at the school taught Grade 12.

18.6. Tiro’s CV stated he taught Grades 10, 11 and 12, A13, which was not true. He had not taught Grade 12 while she had been at the school. She had taught languages at Grade 12 level since 1996.

18.7. On 18 January 2023 she received an invitation to for newly promoted employees to attend induction, A61. No-one from her school attended.

19. In cross-examination she testified that:

19.1. In her diploma she had majored in languages.

19.2. Tiro’s BA degree certificate did not state what his majors were.

19.3. Tiro was not one of the two educators teaching Grade12 in the previous year.

19.4. It was put to her that it was for the executive district manager to confirm the shortlist panel’s recommendation, A56. She disagreed.

20. Thekiso argued that:

20.1. What was in dispute was whether the First Respondent committed unfair conduct in appointing Tiro to the position of department head, and not Boitumelo.

20.2. Boitumelo bore the onus to prove that the Respondent committed unfair conduct. She relied on the following:
20.2.1. Tiro did not meet the additional criteria of the post.
20.2.2. She was more qualified than Tiro.
20.2.3. The SGB’s recommendation was not aligned with the needs of the post.
20.2.4. She outperformed Tiro in the interview process by being ranked position 1.

20.3. The shortlist criteria were:

20.3.1. Candidate must teach grade 12.
20.3.2. Most qualified.
20.3.3. Major Setswana and English.

20.4. Boitumelo taught languages, Setswana and English and was teaching Grade 12. Tiro did not and had not since she had worked with him. In cross-examination Tiro could not support his contention that he taught Grade 12.

20.5. Boitumelo was the better qualified of the two and could demonstrate her language qualifications.

20.6. The SGB used additional criteria in recommending Tiro: “The experience Number 3 has, He has been assisting former DH, and that Number 3 assists in terms of discipline in the school”. Tiro was unable to explain this in relation to the post.

20.7. The SGB found Boitumelo to be the best candidate and ranked Tiro third. She was the best candidate, not Tiro, and should have been appointed to the post.

20.8. In SAPS v SSSBC, Robertson NO and Noonan, [2010] 892 BLLR (LC) the Court held that:

“If the employee is not denied the opportunity of competing for a post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.”

20.9. The relief Boitumelo sought was to be appointed as department head. ELRC Collective Agreement Number 3 of 2016 states:

“58. Only when an employee has proved that he/she was the best of all the candidates who applied for the post and that he/she would therefore have been appointed, had it not been for unfair conduct of the employer, will there be substantive unfairness and may the arbitrator grant substantive relief”.

20.10. Boitumelo was the best candidate and had it not been for the unfair conduct of the Respondent in considering Tiro, she would have been appointed.

RESPONDENT’S EVIDENCE AND ARGUMENT

21. Tiro testified under oath that:

21.1. He had been an educator for 41 years with no break in service. He was professionally qualified and taught Grades 10-12.

21.2. He was recommended for the post by the SGB, A54. Such a recommendation carried weight. The reason given for selecting him were:

“SGB recommend No. 3 based on:
The experience No. 3 has.
He is assisting former DH.
No. 3 assist SMT in terms of discipline in the school (sic)”.

21.3. He did not agree that Boitumelo had more experience. She had broken service.

21.4. He was teaching Grade 12. Languages were part of his degree. Languages were required to qualify as an educator.

21.5. The selection process was fair.

22. In cross-examination he testified that:

22.1. He agreed that discipline was not one of the initial criteria.

22.2. He was qualified and met the requirements of the post.

22.3. Although he did languages as part of a degree, he did not have the list of subjects in the bundle.

22.4. He was teaching Grade 12 Setswana.

22.5. He conceded that there were only two educators teaching Grade 12 English at the school.

23. Keetile argued:

23.1. Boitumelo testified that:

23.1.1. She was the most qualified and suitable candidate for the post and that appointing Tiro was grossly unfair as he did not meet the criteria whereas she did.

23.1.2. The SGB recommended Tiro based on criteria never listed.

23.1.3. She was on the pre-list of appointed candidates invited to attend induction.

Qualifications
23.2. What was in dispute was whether Tiro was the most suitable candidate for the post. The shortlisting criteria were: (a) candidate must teach Grade 12; (b) most qualified; and (c) major Setswana and English.

23.3. Tiro testified that he taught Grade 12, but this was disputed by Boitumelo. However, she did not provide any evidence to support this, which she bore the onus to prove. Tiro’s CV stated he taught Grades 10-12, and this was what the shortlisting panel considered.

23.4. Boitumelo holds a University Diploma, Advanced Certificate in Education: Language in Learning and Teaching, and 26 years of teaching experience. Tiro holds a BA degree, Advanced Certificate in Education, a Primary Teachers Certificate, and 41 years teaching experience. He was the more experienced and qualified candidate.

23.5. Boitumelo lead no evidence as to her majoring in Setswana and English. As the subjects are compulsory in education qualifications it is more probable that both Boitumelo and Tiro met the language criterion.

23.6. All five of the shortlisted candidates were eligible for appointment. Where the committee elects to recommend a candidate other than that in position 1 a short motivation is required, which was done.

23.7. Boitumelo conceded that the invitation to induction was based on a prelist, meaning it was preparatory and not final.


ANALYSIS OF EVIDENCE AND ARGUMENT

24. It is common cause that the, in addition to minimum requirements to be considered for the post, the SGB formulated additional shortlisting criteria, namely: (a) candidate must teach grade 12; (b) most qualified; and (c) major Setswana and English.

25. This was their prerogative and there is nothing unfair about this. In order to be shortlisted any candidate had to meet these criteria. Any candidate on the shortlist was suitable for appointment. The SGB then had the power to recommend the candidate it found most suitable to the Department. The final decision to appoint and who to appoint rests with the Respondent. The Respondent is not bound by the SGB’s recommendation but takes it into account. At this point who has the most experience or is better qualified is irrelevant. The only dispute can be whether the Respondent committed misconduct in appointing Tiro and not Boitumelo.

26. In this case the shortlist committee placed Boitumelo in position 1 and Tiro in position 3. It, however, preferred Tiro and gave its reasons for so doing. The question is whether Tiro should have been on the shortlist for consideration at all. Both were considered amongst the most qualified of the candidates. I accept that both, in all probability, met the language requirements. This leaves whether both taught Grade 12 at the time of the shortlisting. The shortlist committee requirement in this regard was clear: “must teach Grade 12”. This can only be interpreted as teaching Grade 12 at the time of the shortlisting. Had the committee wanted a different criterion, it could have specified: “must have taught Grade 12” – it did not. The question then is whether Boitumelo and Tiro taught Grade 12 at the time of the shortlisting.

27. Boitumelo testified that she was one of two educators who taught Grade 12 at the school. Tiro conceded this in cross-examination. I accept, therefore, that Boitumelo met the SGB’s shortlisting criterion of “teaching Grade 12”, and that she was fairly shortlisted for consideration for the post.

28. Tiro’s CV stated that he taught Grades 10-12. He conceded in cross-examination that he was not one of the two educators teaching Grade 12 at the school at the time. It is astonishing that the SGB did not realize this at the time. Tiro was unable to establish that he was teaching Grade 12 at the time. He may have taught Grade 12 at some point in his career. This would, however, be irrelevant as this was not what the shortlist criterion required. Tiro should never have been shortlisted.

29. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and Others(2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) the Court held that the overall test on promotion disputes 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 considerations on the part of the employer…or whether the employer failed to comply with applicable procedural requirements related to promotions. The decision to promote Tiro was premised on the shortlisting committee failing to comply with their own criteria.

30. Du Toit et al Labour Relations Law: A Comprehensive Guide (5th edition) 486 stated: “there is no right to promotion …, however employees have the right to be fairly considered for promotion when a vacancy arises.” In the absence of Tiro, the remaining four shortlisted candidates had the right to be considered for promotion.

31. In Woolworths v Whitehead (2000) 21 ILJ 571 (LAC) the Court held that in order to prove substantive unfairness that would entitle the Applicant to substantive relief such as appointment to the post, an Applicant in a promotion dispute needs to show a causal connection between the irregularity or unfairness and the failure to promote i.e., the Applicant needs to show that; but for the irregularity or unfairness she would have been appointed in the post.

32. In SAPS v SSSBC [2010} 892 BLLR (LC) the Court held that an arbitrator or court is not the employer. The decision to promote or not to promote falls within the prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of discretion. In this case the process was flawed.

33. In terms of ELRC Resolution 3 of 2016 ELRC Guidelines in promotion arbitration, paragraph 32 and 33 specifically prescribes that an employee who refers a promotion dispute must allege and prove that the decision not to appoint him or her was unfair. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates of all the candidates who applied for the job, then in order for the employee to prove an unfair labour practice relating to promotion, he or she should generally, at least demonstrate that there was conduct that denied him or her fair opportunity to complete for a post, or conduct that was arbitrary or motivated by an unacceptable reason. In this case Boitumelo has proved that she was the best candidate for the post.

34. In George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC), the Court considered procedural unfairness in relation to procedures laid down by an employer before filling promotional posts. The Court held:

“It was accepted that an employer may be held to a contractual term or practice to the effect that the employee will be promoted or transferred and/or that a certain procedure will be followed prior to the filling of the post. The presiding officer stated that: ‘it would therefore stand to reason that during the subsistence of the contractual relationship or the wider concept of an employment relationship issues regarding promotion or a lateral transfer to another job with the employer would be considered legitimate subjects of the existing employment relationship. An employer who held out to a person in his or her employ that that person could apply for promotion and that a certain procedure and practice would be followed before filling a vacancy would be held by this court, in the absence of any necessary justification, to that contract of promise’.

FINDING

35. For the reasons stated above I find that the Respondent has committed unfair conduct in the promotion process by shortlisting and promoting Tiro who did not meet the SGB shortlisting committee’s criteria.

36. The relief Boitumelo sought was to be appointed as department head. ELRC Collective Agreement Number 3 of 2016 states:

“58. Only when an employee has proved that he/she was the best of all the candidates who applied for the post and that he/she would therefore have been appointed, had it not been for unfair conduct of the employer, will there be substantive unfairness and may the arbitrator grant substantive relief”.
AWARD

37. The Respondent did act unfairly.

38. The promotion of Mr. Thekiso Paulus Tiro (Tiro), is set aside.

39. Respondent is ordered to appoint Ms. Saku Thalitha Boitumelo (Boitumelo), to the position of Department Head with effect from 1 July 2023.


D H Smith
ELRC PANELIST
14 June 2023