ELRC959-22/23NC

Panelist: Selolong Mosoma
Case No.: ELRC959-22/23NC
Date of Award: 20 June 2023

In the ARBITRATION between:

SAOU obo Van Zyl C
(Union / Applicant)

and

Department of Basic Education: Northern Cape Provincial Government

(Respondent)

Applicant’s representative: Mr. Brand H
Applicant’s address: SAOU

Telephone:
Telefax:
Email

Respondent’s representative: Ms. Lulama Tutani-Jara
Respondent’s address: Department of Education Northern Cape

Telephone:
Telefax:
Email. 

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This is an arbitration award in the arbitration matter between Carina Van Zyl, the Applicant and Department of Education Northern Cape Provincial Government, the Respondent.

2. The arbitration took place on 2 June 2023. The proceedings were conducted virtually via zoom platform.

3. The Applicant appeared in person and was represented by Mr. Henk Brand, an official of Suid-Afrikaanse Onderwysers Unie. The Respondent was in attendance and represented in the proceedings by Ms. Lulama Tutani-Jara, an employee of the Respondent.

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. Whether the Respondent’s decision to decline the School Governing Body recommendations was fair.

BACKGROUND TO THE DISPUTE

7. The Applicant is currently appointed by the Respondent as a temporary educator at Laerskool Groblershoop.

8. The Applicant applied for a vacant position of Head of Department, and she was shortlisted and interviewed, recommended by the School Governing Body but the Respondent declined the recommendations of the School Governing Body.

9. The Respondent, Department of Education Northern Cape, declined the recommendations of the School Governing Body on the basis that the Applicant does not match the post profile and does not have Afrikaans Huistaal in her tertiary qualification.

10. The Applicant was aggrieved by the Respondent’s conduct or omission, she 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 position Head of Department at Laerskool Groblershoop.

SURVEY OF EVIDENCE AND ARGUMENT

13. The Applicant’s case was as follows, under oath;

14. Mr. Francois Craford Nel testified that he is currently the school principal of Laerskool Groblershoop.

15. He stated that the Applicant is currently acting as Head of Department at Laerskool Groblershoop and performing exactly the same duties as per the advertisement. He stated that learners were not disadvantaged as result of the Applicant acting as Head of Department. The Applicant was a natural born leader, and it gave him comfort that she was acting as Head of Department.

16. It was his evidence that the School Governing Body considered the fact that the Applicant does not have Afrikaans as part of her tertiary qualification. They contacted the University of Northwest, which confirmed that the Applicant was competent to teach and communicate in Afrikaans.

17. At no stage did the school receive any complaint with regards to the Applicant’s conduct or Applicant reprimanded for not doing her work.

18. Lastly, he received a communication regarding conversion of temporary posts to permanent posts and the Applicant’s name was on the list of educators to be converted from temporary to permanent posts.

19. Under cross-examination he confirmed that he was the resource person and advisor during the interviewing process. He also confirmed that Afrikaans is the language of learning and teaching at the school. He denied all other facts put through by the Respondent representative.

20. The Respondent’s case;

21. The witness of the Respondent Mr. Barry Mathupi testified under oath as follows;

22. He testified that he is currently employed by the Respondent as Assistant Director Human Resources Management.

23. He outlined the recruitment and selection process as follows;
24. He explained that in the case of a principal and deputy principal post, the school will identify the profile of the post and does not attach any subject to it. In case of the Head of Department post, subject(s) will be attached. The school will allocate subject(s) and capture them on NCK25 form containing the subject level and principal contact details together with language of instruction. The post will be advertised, and district will do sifting. Thereafter, they will convene a meeting to present the list of shortlisted candidates. The list will be send to the school and in turn the school will arrange interviews of shortlisted candidates. After the interviews, the school governing body will make recommendations to the Head of Department.
25. It was his evidence that the Head of Department will make a decision whether to fill the post or not. If the school governing body recommendation is approved, they then issue a letter of appointment to the successful candidate.

26. Under cross-examination he confirmed that he was part of the sifting team, and their decision was based on information provided on NCK1 form only as there were no certificates attached by the Applicant. He further confirmed that the fact that the Applicant has two subjects listed on the advert does not automatically mean she must be appointed because the post does not only need someone who speak but also passed Afrikaans at tertiary level.

27. He confirmed that for an educator to meet the profile he/she must have passed the subject at tertiary level, but the advertisement preface does not differentiate that.

28. Lastly, he denied all other facts put through by the Applicant’s representative.

CLOSING ARGUMENTS

29. Parties agreed that they will submit closing arguments by no later than the 09 June 2023.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. 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.

31. 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….”

32. The obligation in terms of section 186 (2) of the LRA is for an employer to 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.

33. 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 or 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.

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

35. 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.

36. The unfair conduct the Applicant alleges relates to an unfair promotion in that she was not promoted or appointed to the post of Head of Department at Laerskool Groblershoop.

37. It is common cause that the post of Head of Department was advertised at Laerskool Groblershoop. It is further common cause that the subjects attached to the Head of Department post were as follows;

a. Afrikkans HL (Gr2)
b. English FAL (Gr2)
c. Lewensvaardigheid (Gr2)
d. Mathematics (Gr2)

38. It is also common cause that the language of instruction is Afrikaans.
39. 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.

40. It is also common cause that the school governing body recommended her as the best and suitable candidate for the position to the Head of Department.

41. In the matter on hand, it is common cause that the Head of Department declined the school governing body recommendation on the basis that the recommended candidate does not meet the profile of the post as advertised in the Gazette.

42. 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.

43. The crux of the Applicant’s case was based on the preface of the advertisement which stated that “for Departmental Head post recommended candidates must have passed at least two of the advertised subjects as part of the qualification in the event the post has more than two subjects”.

44. The Applicant argued that the Respondent’s decision not to promote her because she does not have all four of the advertised subjects in her qualification, is in stark contradiction to its own rules as set out in the preface of the vacancy list.

45. It is my considered view and conclusion that the Applicant failed to provide solid reasons in substantiation of her assertions that the Respondent’s conduct or omission amounts to an unfair labour practice by failing to appoint her to the post of Head of Department at Laerskool Groblershoop. This I say, because the Applicant could not provide proof that indeed she meets the profile of the post as advertised and that she does have Afrikaans Huistaal in her qualification. The applicant’s argument is based on the fact that she has at least two of the advertised subjects as part of her tertiary qualification. I am inclined to reject the Applicant’s argument.

46. In this case, on the undisputed evidence, the Respondent’s evidence was that the sifting process was based on NCK1 forms which only contained information provided by the applicants and not based on their qualifications. The Applicant indicated that she has three years’ experience and three years qualification hence she was shortlisted.

47. In this case a verification process was not undertaken by the selection committee. The officials responsible for sifting must have known or could reasonably have ascertained from the application that the Applicant does not have Afrikaans as a subject at tertiary level or meet the post profile when they shortlisted her for interviews. It was undisputed that the sifting process was done based on NCK1 form contained information provided by the applicants. Therefore, it is my considered view that this denied the sifting panel an opportunity to make an informed decision.

48. Similarly, the school governing body responsible for recommending the Applicant for appointment to the Head of Department must have known or could have ascertained that the Applicant’s recommendation for appointment was manifestly unsustainable. Instead of accepting the Head of Department’s decision by conceding the impropriety, they attempted to justify their decision by approaching the University of Northwest to issue a letter confirming that the Applicant is competent to speak and teach in Afrikaans. This despite the Applicant not having Afrikaans as home language at tertiary level or meeting the post profile.

49. The Head of Department might not have been aware of what transpired during the sifting process that ultimately led to the Applicant being shortlisted for interviews. She certainly became aware that the Applicant does not have Afrikaans as home language at tertiary level and not meeting the post profile when she received the governing body recommendations.

50. Most, if not all, job advertisements have written minimum requirements and assigned functions. Furthermore, promotion or appointment is a drawn-out process through which applications are sifted to separate those that meet the minimum requirements from those that do not. The Head of Department cannot be faulted when she acted decisively to set aside the recommendations of the governing body.

51. The Head of Department as the accounting officer has general responsibilities in terms of section 6 of Employment of Educators Act, including the responsibility or functions to consider the recommendation of the governing body before making an appointment. Section 6 (3) (g) provides that if the Head of Department declines a recommendation, he or she must-

i. Consider all the applications submitted for the post;
ii. Apply the requirements in paragraph (b) (i) to (iv); and
iii. Despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post

52. As such it was clear that the Head of the Department acted lawfully and fairly, in exercising her duties as the accounting officer in line with the provisions of the Employment of Educators Act.
53. It was not in dispute that the Head of Department had the final decision to approve or reject the governing body recommendations and furthermore it was not disputed that Afrikaans was the language of learning and teaching at Laerskool Groblershoop.
54. It was further undisputed that the Applicant does not have Afrikaans as a subject as part of her tertiary qualification.
55. It is trite law that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
56. If an employee is not denied an opportunity of competing for post, then the only justification from scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
57. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitutes unfairness justifying an interference with the decision to appoint.
58. The Applicant’s contention is premised upon that she qualified to be appointed to the Head of Department’s post for which she was shortlisted and successfully interviewed even though the Respondent still had a prerogative or discretion to appoint. The Applicant’s further contention is based on the preface of the advertisement which states that the candidate must have passed at least two of the advertised subjects as part of the qualification in the event the post has more than two subjects.
59. The Applicant’s approach overlooks several aspects. The first is that the sifting was done solely based on information on the NCK1 form as provided by the applicants. The second one is that Afrikaans is a medium of instruction as set out on the advertisement. The third is that she does not have Afrikaans as home language as part of her tertiary qualification. Fourthly is that the advertisement preface sets the minimum requirements of the post. And importantly, the governing body recommendations are not binding on the decision of the Head of Department. It would therefore be disingenuous of me not to consider these aspects, on the balance of probabilities, in favour of the Respondent.
60. Considering the above, it is my considered view that the Respondent’s conduct or omission does not amount to an unfair labour practice taking into account the fact that Applicant had failed to establish that she was entitled to be appointed for the position given that she did not have Afrikaans as a home language.
61. Therefore, there was no merit to the Applicant’s contention that the Respondent has committed an unfair labour practice by failing to appoint her to the post of Head of Department at Laerskool Groblershoop.

AWARD
62. The dispute is dismissed as the Applicant failed to demonstrate the existence of an unfair labour practice.

SIGNED AT BLOEMFONTEIN ON THIS 20 June 2023.

Selolong Mosoma
ELRC Arbitrator