ELRC279-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN
GRAHAMSTOWN

Case No ELRC279-23/24EC

In the matter between

NAPTOSA obo M Speckman Applicant

And

Provincial Department of Education: Eastern Cape 1st Respondent

M Booysen 2nd Respondent


ARBITRATOR: JOHN CHEEERE ROBERTSON

HEARD: 14 September 2023

DELIVERED: 16 October 2023

AWARD

Details of hearing and representation
1 This matter was set down for arbitration in terms of section 191(5)(a) of the Labour Relations Act (LRA) on 14 September 2023 at the offices of the Department of Education in Makhanda. Adv D Saayman of NAPTOSA represented Ms M Speckman (applicant). Ms B Nchukana, represented the Provincial Department of Education Eastern Cape (1st respondent). Ms M Booysen (2nd respondent) appeared and was represented by Mr Matinise of SADTU. The hearing was recorded. The parties agreed to submit written closing arguments by 21 September 2023. I received the applicant’s written closing argument on 21 September 2023 and the respondent’s on 28 September 2023. I requested an extension within which to submit my award.

Issue to be decided
2 The issue to be determined concerns whether the respondent acted unfairly towards the applicant in not shortlisting her for interviews for the post of head of department (hod), Post level 2, Foundation Phase, George Dickerson Primary School (GDPS), Makhanda, Vol 2 of 2023, Post No. 571 advertised in the Departmental Open Bulletin of 2 May 2023, and dependent thereon appropriate relief.

Background to the dispute
3 The applicant is a post level 1 educator, teaching natural sciences to grades 5, 6 and 7 at GDPS. She has been doing so since 1 January 2018 when she was appointed as an educator in the Department of Education, Eastern Cape. She earns a salary of R 27 318.25 per month (R 327 819.00 / 12). The applicant and two other educators, including the second respondent, applied for the post in question. Two candidates, the applicant and the second respondent, were “sifted in” by the department and these applications were sent to the School Governing Body (SGB) GDPS. The SGB Interview Panel (IP) determined additional criteria namely; Must be a foundation phase educator; 3+ years teaching experience; Must be bilingual; Qualifications and experience and Completion and Attachment of the necessary forms . The IP excluded the applicant on the basis that she was not currently teaching foundation phase, did not shortlist her and interviewed only the second respondent, who was subsequently appointed to the post.

4 The applicant took issue with the failure to shortlist her. It was her case that although she was not teaching Foundation Phase, she was a qualified foundation phase educator and had experience in teaching Foundation Phase (Grade R). As to relief, the applicant sought that the appointment of the second respondent be set aside and the selection and appointment process be redone. The respondents opposed the relief sought by the applicant.

5 On a question from the arbitrator as to whether the SGB of GDPS had been joined, the applicant’s representative advised that the 1st respondent had indicated that it would be calling the Chairperson of the SGB. The applicant handed up a bundle of documents A1–A79 on the basis that the contents of the documents were not in dispute, were relevant and admissible and admitted into evidence in the arbitration of what they purport to be and required no further proof as to authenticity, delivery and receipt.

6 Accordingly, the issue/s for determination are:
o Whether the respondent perpetrated an unfair labour practice in not shortlisting the applicant, and if so
o Appropriate relief

SURVEY OF EVIDENCE
The applicant’s submissions
7 The applicant, Ms M Speckman, testified on her own behalf as to her qualifications and experience. The applicant also led the testimony of Ms NV Makalo, an educator in the employ of the respondent and who had acted as an observer in the selection process in question.

8 The applicant testified amongst other things that she had been the principal of Lebone Centre (2013-2017) during which time she taught Grade R and supervised two other teachers who taught the balance of the foundation phase. Prior to teaching at Lebone Centre, she had been a practitioner at Parkside Primary School in East London (1983-1994) . She obtained a National Diploma: Early Childhood Development (level 5) awarded to her on 02 09 2010 (A75) and a Bachelor of Education (Foundation and Intermediate phase) which was awarded to her on 8 May 2015. She applied for and obtained a post at GDPS in 2018 and had since then been teaching intermediate phase,( Natural Sciences, grades 5, 6 and 7).

9 Ms NV Makalo, testified to the following effect:
9.1 In evidence in chief, she confirmed that the additional criteria had been agreed upon prior to opening the envelope, i.e. according to her:
9.1.1 Education Foundation Phase Educator
9.1.2 The educator must be a qualified foundation phase teacher as the post was for foundation phase
9.1.3 3 years at least teaching foundation phase
9.1.4 Bilingual
9.1.5 Qualifications and experience in that phase
9.1.6 The educator should have experience in the advertised phase

9.2 The IP had decided to shortlist the second respondent, because when they opened the envelope they noticed that one of the applicants (the second respondent) met all the requirements that they were looking for. With regard to the other (the applicant), she initially said they were not sure that she had foundation phase qualifications. Later, her attention drawn to A71 (B.Ed. degree (Foundation and Intermediate phase)), she confirmed that the applicant had been qualified. The other problem was that the applicant was not currently teaching foundation phase and the years (i.e. the period from when she left Lebone Centre (2017) until date (June 2023)).

9.3 She explained that even before they opened the envelope, that they needed someone who had experience in that phase, someone currently teaching in the phase, someone who will be able to know how to deal with that phase, as they were currently in it.

9.4 As to whether she considered the applicant’s experience in teaching Grade R at Lebone Centre for 4 years (1987-2017), as foundation phase experience, she answered to the effect that; not really, as that was where they had a question mark and whether they should treat Grade R as foundation phase or not. She later acknowledged that Grade R was part of the Foundation Phase.

9.5 Asked whether they had any discussions of the applicants after opening the envelope. She responded that they had a discussion around the CV’s to see who met the criteria and they noticed:
9.5.1 Both had the experience
9.5.2 The applicant was not currently teaching the foundation phase
9.5.3 During the process, they were looking at the criteria, both qualified, but looking at experience they were looking for someone who had 3 or more years. Looking at experience they saw one was OK but what they had in mind was the experience, because one of the candidates was teaching Inter sen (I.e. grade 4 and above) and the other foundation phase. There was also a lack of clarity as to whether Lebone Centre was “a pre-school or what”.

9.6 The SGB did not consult with the HOD when they realised there were only two candidates. The SGB continued with the process.

9.7 In her view, the shortlisting had been productive and successful and she had endorsed the Nomination of Candidates for Shortlist accordingly. It was productive in that she learnt something and successful in that they ended up with someone to interview. This was her first time to observe at a shortlisting meeting.

9.8 In cross-examination, she was asked to explain when the reference to currently teaching came up. Her response was that this had not been set when doing the criteria and, in her manner of speaking, she was emphasizing the criteria they had set to shortlist applicants. They were looking for someone who had the qualifications, experience and the things listed in the record .

9.9 During re-examination, Ms Makalo was asked:
9.9.1 for clarity on whether they had raised the issue of “currently” after opening the envelope. She responded that once they had opened the applications and seen that the applicants qualified to teach foundation phase, they looked at what they were currently doing. They saw that one applicant was teaching foundation phase and had experience In the foundation phase and the other had been teaching foundation phase in a creche. That is what came up and that is what they were talking about. She however was actually in between because she thought that foundation phase was grade 1 to 3 whereas it was Grade R, and Grades 1 to 3. She was a qualified senior phase/FET educator and accordingly not conversant with the foundation phase;

9.9.2 again as to whether the criteria of currently teaching foundation phase was set before or after opening the envelope. She repeated that before they opened the envelope, the things they talked about were:
9.9.2.1 3 years-experience / teaching experience
9.9.2.2 Must be a foundation phase teacher
9.9.2.3 Must be qualified
9.9.2.4 They must have experience;

9.9.3 once more as to when the issue of being a current foundation phase teacher was discussed. She responded that she thought they discussed this after the opening of the envelope, because, as she had said, they had a question mark regarding whether Lebone Centre was “a creche or what” and how long ago the applicant had been there.

10 The applicant took issue with not being shortlisted and interviewed. It was her case that the SGB had unfairly excluded her on the basis of an additional criterion to the effect that she was not teaching foundation phase at the time (currently). She argued that she met the requirements of the advertised post, had experience in teaching foundation phase and had the necessary qualifications. She also took issue with the fact that the respondent had not complied with the prescripts of the Personnel Administrative Measures (PAM) in respect of the interview, recommendation and that the authorisation of the Head of Department had not been sought. Put to her that the HOD had delegated such powers to the District Office, she disputed this. The respondent however conceded that the matter had not been sent to the HOD.

The respondents’ submissions
11 Neither the first nor second respondent elected to testify and closed their case.

12 The first respondent argued to the effect that the SGB had the right to set additional criteria to minimise the number for interviews, that the applicant only had experience in teaching Grade R and not grades 1-3, and further that the post of hod required management skills, (which the applicant would not have acquired during her experience working as an educator). The respondent however conceded, properly so and to the credit of Ms Nchukana, that the appointment of the second respondent was processed at district level and not by the HOD of the Department of Education, Eastern Cape, as per B.5.4 of the PAM.

Analysis of evidence and argument
13 I have considered all the evidence and argument, but because the Labour Relations Act 66 of 1995 requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and my award.

14 Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
…

15 The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions . An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The CCMA / Bargaining Council does not have a general unfairness jurisdiction and an employee referring an unfair labour practice dispute in terms of Section 186 must demonstrate that it falls within the section . The employee must prove not only the existence of the labour practice, but also that it is unfair. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.

16 Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act .

17 The test or yardstick in unfair labour practice disputes, including disputes relating to promotion is fairness .


Comment
18 In summary, the position as gleaned from the testimony of the applicant, her witness, common cause facts and the documents is:
18.1 The Foundation Phase is Grade R, Grade 1, 2 and 3.
18.2 There had been three candidates who had applied for the post and the department “sifted in” both the applicant and the second respondent.
18.3 In terms of the PAM, Par. B5.4.4 , [all] applications that meet the minimum requirements and provisions of the advertisement must be handed to the SGB responsible for that specific institution / the responsible interview committee. The requirements for the post in question, a post level 2 post, as per the Bulletin of 2 May 2023 at A39, include, Afrikaans / English. Grade 1-3, All foundation learning areas. This was done and the applications of the two candidates (the applicant and the second respondent), who were ‘sifted in” by the department, were given to the SGB.
18.4 Both the applicant and the second respondent met the minimum requirements for the post and are qualified and experienced foundation teachers.
18.5 The SGB added additional criteria (A41) but did not shortlist the applicant on the basis that she was not currently teaching foundation phase at the time
18.6 At the time the applicant was teaching grades 5, 6 and 7 (Intermediate / Inter Sen phase)
18.7 The SGB IP decided not to interview the applicant on the basis that she was not teaching foundation phase at the time (i.e. currently) and accordingly did not shortlist her .
18.8 The SGB IP interviewed the 2nd respondent on 26 June 2023.
18.9 The SGB recommended the applicant for appointment on 26 June 2023 (A61-A62C), this was supported by the EDO (28 06 2022) and CES Education Governance (11 07 2023) and approved by the District Director on 11 July 2023 .
18.10 The SGB did not act in accordance with the provisions of paragraph B.5.4.13 of the Personnel Administrative Measures (PAM)
18.11 The second respondent was then made an offer of appointment as HoD, foundation phase, GDPS, by way of a letter of offer of appointment, signed by the District Director: Sarah Baartman District (A62E-A62F), which she accepted and is currently teaching in the post at GDPS.
18.12 The District Director and not the Head of Department approved the appointment, contrary to the provisions of the PAM, paragraph B.5.5.2.

19 The SGB Interview Panel (IP) at a meeting on 20 June 2023 , agreed on the following criteria :
19.1 Must be a Foundation Phase Educator
19.2 3+years teaching experience
19.3 Must be bilingual
19.4 Qualifications and experience
19.5 Completion of application forms (Employment History, CV, Application Form to be included.

20 There was some confusion on whether the criterion as to currently teaching as a qualified foundation educator as opposed to a qualified foundation educator (who was not teaching foundation phase at the time), was added by the SGB IP prior to or after the opening of the applications. Although Ms Makalo appeared to contradict herself, the general tenor of her testimony was to the effect that the issue of currently teaching foundation phase had arisen during the time they had discussed the applications. That is, after the opening of the envelope.

21 Ms Makalo was acting as an observer. It was her first occasion to act as an observer. She was a qualified senior phase/FET educator and accordingly not conversant with the foundation phase. It is apparent from her testimony that at the time of the shortlisting, she had doubts as to the experience of the applicant. Whether this was the case in respect of the IP, is not known. It is self-evident that on opening the applications in question, the IP would see that the second respondent was currently teaching foundation phase (A45) and that the applicant was not teaching foundation phase, but Natural Sciences to grade 5, 6 and 7 (A66B). In addition and as testified by Ms Makalo, the IP would discuss the respective applications to determine who met the criteria agreed upon. To eliminate the applicant on the basis that she was not currently teaching at the time, is to ignore the fact that the applicant was a qualified foundation educator, and contrary to the criteria agreed upon by the SGB IP at its meeting on 20 June 2023.

22 I find that the SGB determined the additional criteria, i.e. must be a foundation phase educator, 3+ years teaching experience, must be bilingual, qualifications and experience and completion of application forms (employment history, CV, application form to be included), before the opening of the envelope. This is in accord with the general tenor of the evidence of the applicant’s witness, Ms Makalo and the SGB minute at A41.

23 The question arises whether the issue of “Currently Teaching Foundation Phase” is different from “Must be a foundation Educator” and if so, whether currently teaching foundation phase was introduced after opening the envelope. To be a foundation phase educator, an educator would have to have the relevant qualifications and experience. Even if one were to argue that the applicant’s experience, prior to being the principal and teaching Grade R at Lebone Centre, did not qualify, the applicant would still qualify in terms of experience. I am of the view that she would also have acquired managerial experience during this period as she was principal, taught Grade R at Lebone Centre and supervised two other teachers. She has in fact entered this on her application form (i.e. teaching (Grade R) and managing). The fact that the applicant had the relevant qualifications and experience was common cause. Indeed the department “sifted in” the applicant on the basis that she met the requirements for the post as advertised (A65). In addition, to extend the meaning of “Must be a Foundation Phase Educator” to mean only those qualified foundation educators who were teaching at the time, would have the effect of discriminating against foundation phase educators who currently were not teaching foundation phase , would not be in line with the advertisement or the criteria developed by the SGB and would in the circumstances be irrational and in casu was unfair towards the applicant. “Currently Teaching Foundation Phase” is self-evidently different from “Must be a Foundation Phase Educator. The one requires an educator to be qualified and currently teaching foundation phase, whereas the other requires an educator to be a qualified foundation phase educator. The experience component was determined at 3+ years by the SGB and it was common cause that both applicants met this. I find further that the requirement of currently teaching foundation phase, emerged after the envelope was opened and when the qualifications and experience of the applicants were discussed by the IP and that this is consistent with the probabilities. There can be no doubt that this was unfair towards the applicant as it denied her the opportunity to present her candidature.

24 The failure to shortlist the applicant on the basis that at the time she was not “currently” teaching foundation phase was irrational, unreasonable and not part of the criteria determined by the SGB prior to opening the envelope. It is difficult to understand how the SGB IP, faced with two qualifying applicants, did not shortlist one and shortlisted the other. This is not only inexplicable and unfair towards the applicant but is contrary to the implication in the PAM, paragraph B.5.4.9, i.e. not more than 5 candidates should be shortlisted and accordingly, by implication where there are less than 5 qualifying applicants, they all should be shortlisted.

25 The PAM at Par. B.5.2.1.1 provides inter alia that the advertisement of vacant posts must be self-explanatory and must include amongst other things “(a) Minimum requirements” . In other words, the requirements set out in the advertisement are minimum requirements and as such do not prohibit the respondent (SGB) from setting higher criteria. The post as advertised is an hod post level 2 post for grades 1,2 and 3 in all foundation areas. Given that Grade R is part of the foundation phase, this must be taken to be part and parcel of the responsibilities of an hod of the foundation phase. The applicant is well qualified for the foundation phase and has experience in teaching Grade R and it would appear that she was “sifted in” by the department on this basis. However, the SGB IP added additional criteria as set out above. The applicant did not raise objection to any of the additional criteria, except for the requirement that applicants must currently be teaching foundation phase. Currently and since 2018, the applicant has been teaching grades 5.6 and 7, i.e. the intermediate / inter sen phase. She is not currently teaching in the foundation phase.

26 The applicant was sifted in by the department and at the time in question was a qualified and experienced foundation phase educator and met the additional criteria decided upon by the SGB IP (A41).

27 It follows that the SGB IP and by extension, the respondent acted irregularly and unfairly toward the applicant in not shortlisting her for the post. The SGB IP’s reason for excluding the applicant is irrational and it is not open to the respondent to claim, on this basis (i.e. this was done by the SGB), that it did not act unfairly towards the applicant, see below.

28 The applicant has proven that the respondent acted unfairly in not shortlisting her for interviews and thereby denied her the opportunity to present her candidature. In addition to challenging the failure to shortlist her, the applicant took issue with the procedure adopted by the SGB and 1st respondent as to the interview and the appointment of the successful incumbent, on the basis that the process followed did not comply with, and was contrary to the PAM. I deal with this below.

29 The SGB’s recommendation and the processing of the appointment, at District level, constitutes a contravention by the 1st respondent of the PAM, paragraph B.5..4.13.[2] namely, that where there are fewer than three candidates the SGB is required to consult with the Head of Department (HOD) (See also section 6(c) of the Employment of Educators Act 76 of 1998). The SGB IP interviewed and recommended only one candidate and did not consult with the HOD. It is self-evident that this constitutes a contravention of paragraph B.5.4.13 of the PAM.

30 The appointment, at the level of the District Office (A41, A62C-A62F), of the second respondent to the post in question, constitutes a contravention of the PAM, paragraph B. 5.5.2 . Paragraph B.5.5.2 provides that where the SGB has not met the requirements of paragraph B. 5.4.13 the HOD must decline the recommendation.

31 In the circumstances, I find that the applicant has established that the 1st respondent committed an unfair labour practice relating to promotion against her in regard to the promotion post PL 2 post number Vol. 2 of 2023 number 571 Foundation Phase, at George Dickerson Primary School.

32 As to relief. The applicant initially sought that the appointment be set aside and the post be readvertised and 12 months compensation. At the hearing she abandoned the claim for compensation and sought only that the appointment of the second respondent be set aside and that the process be redone.

33. Notwithstanding the applicant’s representative’s advices that the 1st respondent would call the chairperson of the SGB to testify, this did not materialise. I requested the parties to address me in writing as to the impact the absence of the SGB may have on any award I may Issue. The applicant took the view that the SGB had been notified of its joinder by way of an email to GDPS and also that the respondent had indicated it would call the Chairperson of the SGB to testify and had then not elected to call the SGB Chairperson. In addition the applicant argued that the SGB, by virtue of the afore going, would have been aware of the applicant’s hearing and had notwithstanding failed to attend. The SGB in the circumstances, had according to the applicant, waived its rights to participate in the hearing. The respondent was of the view that the absence of the SGB Chairperson would have no impact on any award that may be issued. I have confirmed with the ELRC that no joinder ruling was issued in respect of the SGB of GDPS.

34 The SGB makes a recommendation to the HOD in respect of who should be appointed to a post at the school . Although the HOD is the final decision maker regarding the appointment of the successful candidate, the SGB is closely associated with the process and has an interest in who is appointed to the school. This is reinforced by Section 16(1) and (2) of the South African Schools Act 84 of 1996 that provides as follows:
16 (1) Governance and Professional Management of Public Schools
Subject to this Act, the Governance of every Public School is vested in its governing body and it may perform only such functions and obligations and exercise only such rights as prescribed by the Act.

16 (2) A governing body stands in a position of trust towards the school.”

35 In summary the governance of the school, subject to the Act, is vested in the SGB who stand in a position of trust towards the school and accordingly by definition, are concerned with the interests of the school including the appointment of educators. This is further supported by the make-up of the SGB, see section 23 of the South African Schools Act, and the functions of the SGB, as set out in Section 20 of the South Africans School Act, in particular Section 20(1)(a) which provides as follows:
20 Functions of all governing bodies.
20 (1) Subject to this Act, the governing body of a public school must –
(a) promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school;
…
(i) recommend to the Head of Department the appointment of educators at the school, subject to the Employment of Educators Act, 1998 (Act 76 of 1998) and the Labour Relations Act, 1995 (Act 66 of 1995);

36 In the circumstances, the SGB has a legal, direct and substantial interest in the dispute referred under case reference ELRC279-23/24EC and should have been formally joined as a party to the applicant’s dispute.

37 In the circumstances, I am not in a position to make an award that would adversely affect the interests of the SGB as they were not present and have not been joined as a party to these proceedings. Taking this into account, in addition to the upheaval and effect an order setting aside the second respondent’s appointment and redoing the recruitment and selection process, would have on the learners in Grade R, and Grades 1-3, I am of the view, that given the circumstances, an award of compensation in favour of the applicant would be fair and appropriate.

38 The applicant has considerable experience, she qualified for the advertised post and was sifted in by the department. She was not shortlisted for interviews on the basis of a criterion, currently teaching foundation phase, which surfaced after drawing up the list of criteria and the SGB and HOD failed to follow the prescripts of the PAM in recommending and appointing the second respondent to the post in question. The conduct of the SGB IP denied the applicant the opportunity to present her candidature for the post. Taking this into account, I am of the view that an award of compensation calculated at 1.5 times the monthly remuneration of the applicant would be just and equitable in the circumstances. This is R 40 977.37, calculated as follows ( R 27 318.25 X 1.5 = R 40 977.37).

39 I make the following award.

AWARD
40 The 1st respondent, the Department of Education Eastern Cape, committed an unfair labour practice relating to promotion, as envisaged in Section 186(2)(a) of the Labour Relations Act No. 66 of 1995, against the applicant, Ms M Speckman.

41 The applicant, Ms M Speckman, is entitled to compensation in the amount of R 40 977.37, calculated as set out in paragraph 38 above.

42 The respondent, the Provincial Department of Education: Eastern Cape, is ordered to pay the amount of R 40 977.37, subject to lawful deductions for RSA Tax, to the applicant, Ms M Speckman, on or before 30 November 2023.

Signature:
Panelist: John Cheere Robertson
ELRC
Sector: Public: Education