ELRC673/22-23LP

Case No.: ELRC673/22-23LP
Panellist: Grace Mafa-Chali
Date of Award: 04 July 2023

IN THE ARBITRATION BETWEEN:

SADTU OBO LINKIE NAPO-SEHALE APPLICANT

AND

DEPARTMENT OF EDUCATION- LIMPOPO PROVINCE 1ST RESPONDENT

MAKGOLENG ISAAC MADITSI 2ND RESPONDENT

THE DETAILSOF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on 13 June 2023, 09h00, at the offices of the Department of Education, Corner Hospital and Hans van Rensburg Streets, Polokwane in Limpopo Province.
2. The Applicant, Linkie Napo-Sehale was in attendance and represented by SADTU official, Mr Stephen Matlala.
3. The 1st Respondent, Department of Education : Limpopo Province was represented by Mr Eric Nyathela, Labour Relations Officer. The 2nd Respondent, Makgoleng Isaac Maditsi represented himself.
4. At the conclusion of the arbitration process, parties requested to submit written closing arguments and were directed to submit them by the latest 20 June 2023. All parties obliged. I have considered the closing arguments in my findings hereunder.

ISSUES TO BE DECIDED
5. I must decide whether or not the 1st Respondent committed unfair labour practice against the Applicant in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (LRA) relating to promotion.
6. If so, I must determine the appropriate relief.

BACKGROUND TO THE DISPUTE
7. The Applicant was appointed at Relebogile High School since 01 January 1989 as CS1 Educator and she earned a basic monthly salary of R33 394.25.
8. The 1st Respondent advertised the position of Departmental Head: Economics and Business Studies (HOD), Grade 12 in terms of the Open Vacancy List No 1 Volume 3/2022 at Relebogile High School and subsequent to the recruitment process the 2nd Respondent was appointed in that position with effect from 01 January 2023, after the candidate M Mashau, who was initially offered the position declined the offer.
9. The Applicant also applied for the same position but was not appointed. She submitted that she should have been appointed in the position as she met the minimum requirements of the advertised post.
10. The 1st Respondent submitted that the Applicant could not be appointed in the position due to the over-representation of females in the occupational category of HODs therefore the 2nd Respondent was appointed due to requirements of employment equity as the advert specifically stated that the 1st Respondent is an equal opportunity, affirmative action employer.
11. It was common cause that both the Applicant and the 2nd Respondent met the PAM requirements of REQV 13 qualification, registration with South African Council of Educators (SACE) and applicable teaching experience.
12. It was also common cause that the Applicant possesses a Senior Teachers Diploma, Advanced Certificate in Education, BA Honours in Education Management, Law and Policy and almost 33 years of experience in teaching.
13. It is also common cause that the 2nd Respondent was also appointed as C1 Educator since 01 January 2003 at Potlake Secondary School and moved to Swartlkip Combined School and Sundra Hoer Skool in Mpumalanga Province in 2013 and 2016 respectively; and possesses Secondary Teachers Diploma, Advance Certificate in Education, Higher Certificate in ABET, and BA Honours in Education Management, Law and Policy as well as almost 19 years teaching experience.
14. It was further common cause that both the Applicant and the 2nd Respondent were shortlisted and interviewed together with two (2) other candidates M Mashau and C Chabalala and the Applicant scored 85% whilst the 2nd Respondent scored 65%. The recommendations of the interview committee panel and SGB preferred the Applicant as the most suitable candidate. However, the interview panel and SGB recommendations were not approved by the Head of Department (HOD) and instead the HOD appointment of the 2nd Respondent to the position based on equity reasons.
15. The Applicant has however challenged the appointment of the 2nd Respondent based on the inconsistent application of the equity plan as a certain Ms Makofane was appointed last year at the same school in the HOD position, yet she is also a female and those equity reasons were not considered at the time of Ms Makofane’s appointment.
16. Parties submitted bundle of documents as documentary evidence marked bundle AR for the 1st Respondent and marked bundle B for the Applicant. The 2nd Respondent did not submit any documentary evidence.

SURVEY OF PARTIES’ EVIDENCE
The Applicant’s Evidence
Sebolo Linkie Napo-Sehale testified under oath as follows:

17. She was appointed as CS1 Educator since 01 January 1989 at Relebogile High School. Her duties entailed class management and curriculum management. In 2002, 2006 and 2018, she was appointed as Acting HOD. This was an internal arrangement by the SGB and the Principal and she was later paid an acting allowance by the Department.
18. In 2016, she applied for the HOD position as advertised but was unsuccessful as somebody else was appointed and she did not lodge a dispute. When the position was vacated in 2018, she was asked again to act in the same HOD position until December 2022.
19. She applied again when the position was advertised, was shortlisted, and interviewed. She was again not appointed in the position. She has the necessary experience and qualifications; and she is able to deliver the results of more than 70%. She did not agree that she was not appointed on reasons based on equity because Ms Makofane was appointed in the HOD position at the same school and she is also a female.
20. She believed that it is unfair labour practice to appoint a male person as she thought the Department was looking for a suitable candidate not a male candidate.
21. She seeks to be appointed in the HOD position like Ms Makofane.
The Applicant closed her case.


The 1st Respondent’s Evidence
Sam Nyiko Sono testified under oath as follows:
22. He is the Acting Deputy Director: Corporate Services within HR in the Department. It was common cause from the documents in Bundle AR that the Applicant scored 85% and was first in ranking and the 2nd Respondent scored 65% and was the third in ranking.
23. The decision to promote or not promote falls within the prerogative of the employer, with reference to Page 64 of Bundle AR based on equity reasons. Ms Makofane and the Applicant’s case were not the same as in Ms Makofane’s case, it was three females and one male who were interviewed. There were certain competency level requirements and the male Mr N.J Malungane underperformed during the interviews and the Department could not appoint him.
24. Taking into cognizance Circular 150 of 2021, the prerogative to appoint must be exercised with objective to appoint a person that can teach learners in terms of the competency of that person. If a person fails to express himself during the interviews, it will be a disaster. Both Ms Makofane and Ms Sehale are both competent in teaching the subjects required.
25. Any person that performs below 50% during the interviews like Mr Malungane who obtained 45% is not competent, although there is no provision in the collective agreement regulating the percentage performances. His performance was poor for the level post of HOD. A person required in this position must be competent hence the Department exercised its discretion to appoint Ms Makofane.
26. In addressing the equity imbalance of the post, a weaker candidate cannot be appointed as it will be a wrong decision because his performance score was clearly very low. The Department had to look at certain competencies, skills and knowledge of the candidates who were interviewed with Mr Malungane and Ms Makofane was the best suitable candidate.
27. Both Ms Makofane and the Applicant performed well during the interviews as they were able to express themselves during interviews in terms of Clause 37 of the Collective Agreement no 3 of 2016.
28. In deciding not to appoint the Applicant, it was not an issue of performance but compliance on the employment equity plan. The department could not just appoint for the sake of appointing a male candidate to meet the employment equity but the prerogative was exercised to also appoint a person in terms of the competency and the requirements for the delivery of the curriculum need.
29. Circular 150 of 2021 gives the department a prerogative to look at the Circular requirements when making appointments in particular paragraphs 41 and 42. The department did consider the Applicant’s performance score but appointed the best suitable candidate based on equity, not necessarily on the scores. The suitability of the 2nd Respondent gave them an opportunity to correctly apply the Circular 150 of 2021.
The 1st Respondent closed its case.

The 2nd Respondent’s Evidence
30. The Second Respondent closed his case without leading oral evidence. He was also given an opportunity to cross-examine witnesses and he chose not to ask them questions.
The 2nd Respondent closed his case.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

31. I have considered all the arguments of the parties as well as the documentary evidence and what follows is a brief summary relevant to the dispute at hand and does not reflect all the arguments considered in deciding this matter.
32. The Applicant claimed that the 1st Respondent committed an unfair labour practice relating to promotion by not appointing her to the post of HOD at Relebogile Primary School. The onus is on the Applicant to show that the 1st Respondent’s conduct in not appointing her was unfair.
33. In terms of the LRA, general provisions for arbitration proceedings, section 138(1) reads as follows:
“The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”.
34. This matter was referred for arbitration in terms of section 186(2)(a) of the LRA. The relief sought by the Applicant is the setting aside of the appointment of the Second Respondent and she sought to be promoted to the post retrospectively from date of appointment of the Second Respondent.
35. In terms of section 186(2)(a) of the LRA, unfair labour practice means any unfair act or omission that arises between an employer and an employee involving-
“unfair conduct by the employer relating to the promotion, demotion,
probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee”.
36. It is common cause that the Applicant applied for the post of HOD in question, was shortlisted and interviewed for the post together with other three candidates including the 2nd Respondent, and she ranked first out of all the candidates. It is not in dispute that the 2nd Respondent, a male person scored third and was appointed to the post after the second ranked candidate, Mashau who is also a male declined an offer of appointment.
37. It is also common cause that the Applicant had acted in the same post in 2002, 2016 and again in 2018 on arrangement by the SGB and the Principal. The Applicant believed that she was the best candidate based on her qualifications and most highly experienced in terms of years of teaching and furthermore on the basis that she has demonstrated an outstanding skills by continuously delivering very good learners’ results of more than 70% yearly in the commerce stream; and therefore he should have been appointed in terms of Clause 37 of the Collective Agreement No 3 of 2016.
38. It is also further common cause that both the Applicant and the 2nd Respondent met the minimum requirements of the position. The crux of the matter is whether the 1st Respondent’s decision was arbitrary, or capricious, or unfair in not appointing the Applicant but rather appointed the 2nd Respondent.
39. The 1st Respondent argued that it has the prerogative to appoint the 2nd Respondent based on the implementation of the employment equity plan as an equal opportunity, affirmative action employer. It is also common cause that in terms of the employment equity profiles of the 1st Respondent, and the provisions of Circular 150 of 2021, for the position of the HOD, African, Coloured, Indian and White males are under-represented.
40. The Applicant argued that the 1st Respondent could have deviated from the implementation of Circular 150 of 2021, and its equity plan in consideration of its trend to deviate with valid reason as was the case in the appointment of another female HOD in the post number 35, Ms Makofane at the same school who was the best-performed candidate during the interviews. Therefore, the Applicant argued that the 1st Respondent was inconsistent with the application of its employment equity plan.
41. On the other hand, the 1st Respondent argued that in the case of Ms Makofane, from the interview panel recommendations submitted as documentary evidence, it was clear that there were four candidates who were interviewed, comprising of three females and only one male, Mr Malungane ho performed very poorly during the interviews with an scoring of 48%; and therefore he could not even be recommended for appointment by the interview panel and SGB; and further not appointable even though he equity profiles still depicted an under-representation of males.
42. The 1st Respondent further argued that it would be wrong to appoint a candidate solely based on his or her performance during the interviews and disregard experience, qualification and affirmative action policy. It was also argued that the 1st Respondent deviated from the employment equity policy based on the fact that the post of HOD is a subject specialist position, hence the performance of the candidates during the interviews was considered to test the knowledge and skill of the candidates, hence the 1st Respondent was justified in deviating and not appointing the male candidate because he failed to demonstrate the knowledge and skills for the subjects during the interviews with a score less than 50%.
43. The 1st Respondent argued that the decision to appoint was also guided by the provisions of Paragraph 43 of the Collective Agreement No 3 of 2016: Education Labour Relations Council Guidelines that when making appointments, both qualifications and experience as recorded in the CV submitted by candidates together with the performance scores during the interviews must be considered, and not just to appoint purely on performance during the interviews without considering the competency and skills of the subjects demonstrated during the interviews.
44. The 2nd Respondent also presented his arguments that he would like to be retained in the HOD position as appointed by the 1st Respondent in that he has been released in the Department of Education in Mpumalanga Province upon his appointment in this contested post and cannot be placed anywhere else; and further that should the Commissioner rule in the Applicant’s favour, he be placed somewhere else in the same position of HOD, preferably in the Sekhukhune District. The applicant did not present any evidence that she ought to have been preferred and appointed above the Second Respondent on equity grounds as she conceded that the equity profiles for the HOD clearly indicated that African males were under-represented.
45. The Applicant has not proved that he was the best and most suitable candidate for the post as she only considered her qualifications, experience, and the interview performance scores disregarded equity as another criteria considerations for appointment. As already pointed to above, the overall onus to prove unfairness lies with the Applicant and yet her own evidence is not sufficient to underpin her claim, while on the other hand the 1st Respondent has adduced abundant evidence to parry the Applicant’s allegations of unfairness.
46. Indeed merit and suitability of the candidates are not mutually exclusive criteria to equity, which was also an important consideration in this instance in terms of Circular 150 of 2021. On the basis of the evidence presented by the parties, I am convinced that the 1st Respondent has exercised its prerogative in making a decision to appoint the 2nd Respondent and not the Applicant and I cannot find that the 1st Respondent, in exercising its discretion, exercised it in an arbitrary manner, without applying its mind, or unfairly or in a biased manner.
47. My reasoning for the finding is based on the fact that clearly the 1st Respondent took into considerations the provisions of the Paragraph 43 of the Collective Agreement No 3 of 2016 as well as the provisions of Circular 150 of 2021 in the appointment of the 2nd Respondent; as it considered both his qualifications, experience, performance scores as well as employment equity. I am also satisfied that the 2nd Respondent has demonstrated the competency in knowledge and skills of the subjects during the interviews hence he obtained a score of 65%. It cannot therefore be said that the 2nd Respondent was not the suitable candidate for the post.
48. I am also satisfied with the reasons submitted by the 1st Respondent for the deviation in the case of the appointment of Ms Makofane. Clearly, it would be wrong for the 1st Respondent to appoint a male candidate merely due to the employment equity without the considerations of the candidate’s demonstration of the competency in knowledge and skills of the subjects during the interviews, which was shown in this instance that it was lacking on Mr Malungane as compared to the other three female candidates.
49. In this matter the demographics were evident from the 1st Respondent’s equity plan weighing strongly in favour of appointing an African male. From the evidence, it appeared as if the equity considerations were not taken into account by the interviewing panel and the SGB in their recommendations. Therefore, the 1st Respondent had to apply its employment equity which I find rational and justified.
50. The Collective Agreement above has been referred to by both parties. The guideline that underpins the employer’s defence is that the mere fact that an appointed employee did not score the highest mark would not by itself mean that the appointment was unfair. I agree with the guideline as it is in line with common sense and logic.
51. To do otherwise would promote an untenable outcome that would expose the employer to more valid claims of unfairness as more deserving candidates would be wrongly overlooked as the HOD shall have failed to apply his/her mind by mechanically implementing the very quantity-based recommendations of the interviewing panel as it became apparent in this case.
52. Were that to be the case, it would create an assailable situation where the interviewing panel becomes the ultimate decision maker on appointment and the HOD and all other personnel along the administrative chain are simply implementing the decision of the panel. Given the framework of the public education administration and the corporate services and governance guidelines, that approach can never pass the muster.
53. It is my considered view that deviation from the employment equity is acceptable for as long as there are valid reasons for such deviation more particularly in implementing affirmative action; and this cannot therefore be regarded as inconsistency in the implementation of the equity plan as it can also not be expected of the 1st Respondent to continue deviating from the equity plan by continuously appointing female candidates against the equity profiles; as it will defeat the whole purpose of balancing equity in the workplace in the deliverance of its services. The 1st Respondent is required to meet its numerical goals and annual targets set out in the employment equity plan.
54. Under the circumstances, I find that the 1st Respondent did not act unfairly towards the Applicant in not promoting her to the HOD post and as such the decision was properly and fairly exercised, was not irrational and there was no mala fides. I therefore have no grounds to interfere with the decision of the 1st Respondent in this regard.
55. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC), the Court held at para [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised”. The court held further that “ an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
56. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held that “in deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following: whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer; whether the employer’s decision was arbitrary, or capricious, or unfair; whether the employer failed to apply its mind to the promotion of the employee; whether the employer’s decision not to promote was motivated by bad faith; whether the employer’s decision not to promote was discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle and whether the employer’s decision not to promote was taken in a biased manner.”
57. The Labour Appeal Court considered the balance that must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster NO and Others [2017] 4 BLLR 350 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. The court held at para [25] “When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.”
58. In Noonan v Safety & Security Sectorial Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court held at para 13(i): “It is insufficient for a complainant to say that he or she is qualified by experience, ability and technical qualifications; he or she must also show that the decision to appoint someone else in preference to him or her was unfair. If the employer’s decision to appoint another candidate is rational, no question of fairness can arise.”
59. By way of conclusion, I arrive at the ineluctable finding that the Applicant has failed to that to discharge the burden of proof on a balance of probabilities the 1st Respondent’s conduct of not appointing her to the position for which she was interviewed constitutes an unfair labour practice relating to promotion.
60. I therefore find that the Applicant is not entitled to the relief sought.

AWARD

61. The 1st Respondent, Department of Education : Limpopo Province did not commit any unfair labour practice against the Applicant, Linkie Napo-Sehale.
62. The Applicant’s claim is hereby dismissed.


Signature:

Commissioner: Grace Mafa-Chali
Sector: Education