ELRC875-22-23EC

ARBITRATION
AWARD

Arbitrator: Firgil Philips
Case Number ELRC 875-22-23 EC
Date of award: 19 November 2023

In the dispute between:

In the matter between:

Eugene Stallenberg Applicant

And

Department of Education Eastern Cape 1st Respondent

Mrs Deidre Jeffries 2nd Respondent

Details of hearing and Representation

1. This matter was scheduled for arbitration initially held on 20 June, 16 August 19/20 September and 03 November 2023 respectively. It came before me by way of an alleged unfair labour practice dispute in terms of Section 186(2) of the Labour Relations Act 66 of 1995 as Amended (“The LRA”). During the initial stages of the arbitration hearing the Applicant was represented by Ms Nicole Cooper from the firm of Attorneys Nicole Cooper Incorporated. At the second and subsequent sittings the Applicant was represented by Ms Sibongile Sontsonga from the same firm of attorneys. The First Respondent was represented by Ms Anneline Slabbert the Deputy Director Employee Relations. Mrs Jeffries the Second Respondent was represented by Advocate GD Saayman from the trade union NAPTOSA.
Issue to be determined

2. The issue to be decided is whether the Applicant was subjected to an unfair labour practice in relation to an alleged unfair promotion.


Background to the Issue in Dispute

3. The Applicant in this matter applied for the position of Deputy Principal at a school for learners with physical disabilities called Northern Lights School. It is also referred to as a school which accommodates Learners with Specific Education Needs (LSEN). It is a mainstream education focus orientated school. The Applicant earned an amount of R37000, 00 per month before deductions. The Applicant was shortlisted and invited for an interview during which she obtained the third highest score. She was not nominated for appointment after the best scoring candidate was appointed; in this case the Second Respondent. The Applicant’s case is hinged on both the procedural and substantive basis of the appointment.

4. She argued that the entire process was flawed and that a large degree of bias was displayed towards the Second Respondent. She further held that the way the candidates were shortlisted was flawed. It is the Applicant’s case that the Second Respondent who was both part of the School Management Team and the School Governing Body in a sense orchestrated her appointment through influence and bias. This led to the alleged procedural and substantive unfairness of the appointment. The argument was further bolstered by the history of the school which also gave reason for the alleged apprehension of bias.

5. The First and Second Respondents held that this claim was unfounded and that there is no evidence to suggest that such bias was shown towards the Second Respondent. It is also the Respondents’ case that the matter should be dismissed as it could not be proven. This in short are the respective versions.

6. What follows is a brief exposition of the facts which were tendered at arbitration. This matter was characterized by at least two postponements and held over several days. What is recorded here is not an exhaustive account of what was testified during the proceedings. I have considered all the evidence and argument relevant to the dispute and in totality delivered a finding as can be gleaned from my analysis below. I have therefore summarized that which I regard necessary to identify the issues for determination.

Survey of Evidence and Argument

Applicant’s case

7. The Applicant Eugene Stallenberg (Stallenberg) testified under oath: Stellenberg testified that during 2022 Mrs Staci Strydom (Strydom) was elected to the School Governing Body as Chairperson. This according to Stallenberg was done without any notice having gone out to parents. There were two structures which took decisions at school. This was the School Governing Body (SGB) as well as the School Management Team (SMT). The previous SGB functioned without a chairperson and there were hardly any meetings held. Strydom was elected Chairperson of the SGB a week before the interviews of the Second Respondent Mrs Deidre Jeffries (Jeffries). Strydom’s son was the previous year in Ms Daniels’ class. Ms Daniels was called by Jeffries to ask what type of person Lyle’s mother was (Strydom) as they wanted to put her on the SGB.

8. Daniels’ reply to Jeffries was that Strydom would be better placed in the position of secretary of the SGB. Stallenberg testified that she was employed 34 years at Northern Lights School. In 2021 she was used as the remedial teacher as she is qualified to do so. Things were so unfair that some family members have been appointed at the school. In some instances, people would just walk into the principals’ office and were afterwards introduced as the appointed person. On occasion when parents came to fetch their report cards it was introduced that Jeffries was the new deputy principal. Mr Nogaga who oversaw things and still deals with learner promotions was aware of the unfairness and never did or said anything.

9. Stallenberg’s academic qualifications were a national Diploma in education for 3 years and Junior Phase diploma from Dower College. She also held a diploma in remedial education from the University of Port Elizabeth. She was also equipped with handling children with Muscular dystrophy and autism. She was involved in table tennis and chairman of the club with level one coaching able-bodied persons and the spiritual dance trainer at the school. She taught 6 subjects in grade four which were English, Afrikaans, Mathematics, Social sciences, Natural sciences and Life skills. She was also a member of the SGB from 2013 to 2015. She is also passionate about community and learners in general. In 2006/2007 she participated in the Netherlands tennis Championships. She has a zest for life and is a God-fearing woman.

10. Under cross-examination Stallenberg stated that a letter needed to be sent to the parents to invite them to attend the SGB meeting. She further stated that Jeffries gave a job to her niece at the school which amounted to nepotism. When asked what school management experience she had she stated that she managed a phase, with 6 subjects at a time and still managed to do an HOD’s job. Applications would disappear so that certain ones could be appointed. After 2016 people were just appointed into posts. She had the second highest score during the interview process. There was familiarity between Jeffries and 6 people of which five on the SGB and Mr Nogaga on the side of Mrs Jeffries. The only person Jeffries did not know were the two representatives from the trade unions which was Manele and Le Roux.

11. Jeffries was Acting at the time and would always peak to Mr Nogaga if there were issues on the school. Even the questions that were posed could have been given to some of the SMT members including Jeffries. Jeffries was acting principal and not a person of many words which would not make her the ideal candidate. Even if there were meetings and she was supposed to chair did she simply not do so. For this post you need to be firm, bold and stand up for issues. The bulletin they applied for the first post was specifically profiled for Mrs Jeffries and Cloete. In respect of comparative issues Mrs Jeffries is a high school teacher and she is a primary school and the school is accordingly divided into those two categories. She had 6 Subjects for grade 4 learners in both languages and Mrs Jeffries was only teaching Grade 10,11,12. An external panel would have rendered the process fair.

12. Hajira Sufeyan (Sufeyan) a grade 5 Educator for the Respondent testified under oath: Sufeyan stated that the school did not have an SGB that she was aware of prior to Strydom’s appointment. Strydom’s son was in Sufeyan’s class and Jeffries approached her to enquire whether Strydom would be a suitable appointment for the Chairperson of the SGB. Sufeyan indicated that she believed that Strydom was too young and knowing her personality it would not have been appropriate for her to be appointed as Chairperson. The question was posed during the first week of October 2022. She was not aware of the interviews and when they were conducted. They were all aware of the irregularities but did not know how to bring it up due to fear of being picked on.

13. Under cross-examination Sufeyan stated that there was no SGB that she was aware of. Mrs Jeffries asked her if Strydom should be Secretary or Chairperson. Mrs Strydom came to ask her if there was an SGB as she wanted to be part of it since she believed that there were unfair things happening to her son at the school. The SGB has a very big role to play when it comes to the appointment of the principal. It was the first time ever that Strydom became an SGB member and Jeffries was appointed straight afterwards. She never had a problem with Strydom but found it odd as giving her the responsibility to appoint a person.

14. Ms Bulelwa Yvonne Jack (Jack) a grade 7 teacher for the Respondent testified under oath: Jack stated that she did not know anything about the SGB until the day they announced the appointment of the deputy principal. When she saw members of the SGB on 18 July 2023, she was very surprised as she didn’t know how they were appointed. She wrote an e-mail expressing her concerns. The e-mail she sent happened after they spoke as she did not speak behind anyone’s back. The e-mail was sent to Mr Nogaga with no response as with all the other e-mails sent to him. They did not lodge a grievance and she wrote the e-mail and nothing would come of it. They ended up thinking that an external panel may have been appropriate. They don’t have any hope in the SMT or Mr Nogaga. There was no point in going to the Department as nothing would happen. They only saw action happen only when the matter was taken to the ELRC which has brough tension amongst them.

15. Under cross-examination Jack stated that she does not know the SGB at all. They only time they saw the SGB was 18 July 2022 when they announced the deputy principal. She joined the family in 2006 and only appointed in 2016 which was victimisation on its own. She would never sit and watch what someone went through what she went through. Ms Jeffries was serving under Mr Roman and things happened under her watch. They knew staff had problems and they failed staff as the SMT. Mr Roman would not listen to their complaints. Her argument in the meeting was that if they couldn’t bring him to the meeting they should report him to the Department. For her to become permanent at the school she would have gone to her lawyer. Ms Stallenberg was not wanted as part of management or to feature anywhere where she could be given a chance to be part of management.

Respondent’s Case

16. Deidre Annestine Jeffries (Jeffries) testified under oath: Jeffries stated her professional qualifications. She also read into record the short courses she completed. She stated that she was also a senior marker at some point in her career. The fact that Stallenberg mentioned about her niece who was employed by her was news to her. She is so much older than her niece. She was also not part of any appointments including that of her niece under Roman’s leadership. A provincial youth initiative was given for Education assistance during COVID which allowed for walk in applications. From post level 2 it must be advertised in a bulletin.

17. Letters were sent out to parents to remind them to attend the SGB elections. Stallenberg possibly did not see the letter when they sent it home. Only Kramer and Volmink arrived on that evening. At the second meeting it doesn’t matter whether there is a quorum the meeting can continue, and it did. Dr Townsend was the electoral officer. She was present in the meeting and conducted the entire process. It could not be possible that they did not know who the SGB was as there is a teacher component on the SGB. She gets where the applicant is coming from but she could not accept responsibility for things someone else had done. Ms Sufeyan forwarded her a name of the parent who was interested on being on the SGB. Her name was Staci Strydom who came to the second meeting where there were 6 parents and 2 were chosen. She cannot appoint a secretary or Chairperson. She was in the meeting where Mrs Strydom was chosen as the SGB chairperson but did not even participate.

18. Under cross-examination Jeffries stated that has been with the SGB since 2019 and her application stated 2018 which was an honest error. No one picked this up at the Department. The connection between the SGB and SMT is that the SMT is management of the school and the SGB has more powers. Even if the SMT decided on something the final say was with the principal. One cannot be on SMT meetings if you not on the SGB. Jeffries saw Strydom as a parent for the first time at the SGB meeting and the second one was on 05 October 2022. The Chairperson of the SGB is chosen by the SGB members and they will decide who will be on the panel. Strydom was chosen as Chairperson weeks before the post. Ms Strydom had to be part of the selection and the interview panel. All you need is one nomination and one hand to second that nominee. She is not familiar with friends and people at the school.

19. Dr Sharon Townsend (Townsend) testified under oath: Townsend stated that she is retired and has 40 years on total experience in the profession of Education. She stated that she was aware of procedures for by elections at school. As an electoral officer your responsibilities are to guide and advise any interested party. She was part of the by elections 19 September 2022. There were only two parents which arrived which did not meet 50% threshold. Another meeting was arranged for 04 October 2022. She came for the second meeting which had 5 parents and 4 candidates. Page 63 indicated who was all present at the meeting. Four people were nominated and only two were required. It’s a proposer, seconder, and then accepter. Mr Lukas nominated Strydom.

20. Page 70 in the bundle reflected the ballot form with 4 nominees listed and they all accepted. She then took the nominations and counted who had the highest scores and those two people were elected. Staci Strydom got four votes and Palmer got 3. They were the top two to be elected in the SGB on those vacant posts. Jeffries was not part of the process as she excused herself and it was done by herself. She stated that she was in charge. In the conversations with Jeffries she found her committed and possessed loyalty which one could pick up. Jeffries is an asset to the profession. It was procedurally fair.

21. Under cross-examination Townsend stated that she welcomed everyone and explained the process to all concerned. Proposers were obtained and candidates were accepted and then you pretty much have the process done. Jeffries was not introduced as she was there in the background. Jeffries took Townsend to the venue and was in and out. The process was all on her. She was also on the SGB and appointed principal and there is a process that is followed and there cannot be bias. She could not assess any bias as she had no documents in front of her. She does not know if the SGB was not functional. She was just there as an electoral officer. She never sat in any of the meetings to see who was competent. Such questions posed to her were therefore out of reach of an electoral officer.

22. Traci Strydom (Strydom) testified under oath: Strydom testified that by profession she is a property portfolio manager. She stated that she did not know Jeffries before the interview. Jeffries never contacted her nor tried to influence her regarding the deputy principal’s post. Page 2 reflects the minutes of a meeting that was held in the staff room for the selection panel meeting. Jeffries was not present. She stated that she has experience in chairing meetings and making sure things go according to plan and believed that she was best suited for the position. Mrs Adriaanse nominated her and was seconded. They opened up envelopes of candidates and discovered that Laaiqah Moodaely was disqualified, as she used an incorrect post number and submitted copies of certified copies. Furthermore, it was revealed that Shuanine Richelle Filander submitted copies of copies and Bell’s information was not certified. The remaining applicants were divided amongst the panel of which both Jeffries and Stallenberg were part of shortlisted applicants. She opened the meeting and introduced the panel to representatives as well as Mr Nogaga.

23. They all signed confidentiality forms and then went through the process of how interviews would be held. They then went through interview questions to be prepared for applicants so that they all were asked the same questions. Union representatives monitored and were present at all material times. It was decided that it would be 6 questions to start with herself and ending off. The reason why Jeffries’ scoring came in higher was that she was confident, answered each question with thought, properly researched and met the panel’s requirements. She could not fathom how Jeffries could have possibly received the questions as they sat before the Applicants came in. Every single score was validated. Mrs Stallenberg lacked confidence and did not give clear direct answers to the questions. The answer would not be on the same path of the question. She would divert and tell a story. If the panel spoke about discipline she then spoke of values, religion and where she started. She asked at the ratification meeting if Mrs Jeffries be recommended for the post and the whole SGB agreed.

24. Under cross-examination Strydom stated that she was never in contact with any SGB members prior to her appointment. She was aware that every school has an SGB but did not interact with anyone at Northern Lights. The reason why she wanted to join was that she collected her sons report by Mrs Daniels and got onto a discussion of bullying. She then asked Daniels what was being done and she noted that there was a lack of movement from the SGB. She spoke to no one and got to know about the date to be there for the by elections. She first got to know Stallenberg and afterwards was introduced to Jeffries.

25. Andile Nogaga testified under oath: Nogaga stated that he is the Circuit Manager for special needs school in Nelson Mandela Bay. He looks after governance in the Nelson Mandela Bay ensuring that there is proper administration and management of school principals. There has always been a SGB at Northern Lights School. There was a complaint regarding anomalies in an advert and they had to re-advertise it. Management is the core responsibilities of a deputy principal. Each school does have an electoral officer and Dr Townsend conducted these very well and independently. He was a resource person whose job was to observe processes and make sure that it was as followed. It must be free and fair without prejudice to anyone. The SGB was properly constituted. With regards to the appointment, it was above board and confirmed by the trade unions which were present. Staff members are supposed to be aware when there are elections for the SGB and the processes.

26. Under cross-examination Nogaga stated that Jeffries was not part of shortlisting, interviews and ratification but that he was. It was not necessary to get an independent body to make this decision despite the history of the school. With the previous post they intervened to avoid the claim that the advertisement was designed for a particular person. He does not understand how teachers do not know that there is an SGB when it is elected by teachers themselves. The school is well run and managed and there were issues of in fighting. Processes are transparent especially due to ratification of interviews conducted. When the school has a vacancy the SGB and their panel needs to be trained on processes for selection. Stallenberg did not qualify according to the scores. They were going to need someone with leadership, management and administration and Ms Jeffries has that as well as HOD and acting deputy principal. Sifting is done by HR not by him so they must have missed the error on Jeffries application which is insignificant.

Closing arguments

27. In having arrived at this decision the closing Arguments have been considered extensively. All three parties are commended for having submitted them well within the times frames. For the sake of brevity and unnecessary repetition of evidence I am not going to record them here. They are however available on file for scrutiny for any subsequent proceedings, if any.


Analysis of Evidence and Argument
28. It is trite law that an employee who alleges that the employer perpetrated an act of unfair labour practice relating to promotion, bears the onus of proving the claim on the balance of probabilities. It is well established principle that employees do not have a right to be promoted in the ordinary course; they only have a right to be given an opportunity to compete for a position. In the Labour Appeal Court (‘LAC’) case of Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) the Court confirmed that an employee must be given a fair opportunity to apply for a post and to be considered. Unless the selection process is rigged or arbitrary an arbitrator ought not to intervene.

29. In the case of City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC) it was held that the overall test is one of fairness. In deciding whether an employer acted fairly in failing or refusing to promote the employee it is relevant to consider (a) whether the employer’s decision was based on unacceptable, irrelevant or invidious comparisons ; or (b) that the decision was arbitrary, or capricious, or unfair; or (c) that the employer had failed to apply its mind to the promotion of the applicant; or (d) that the employer’s decision not to promote the applicant was motivated by bad faith, or (e) that it was discriminatory.


The Appointment of Staci Strydom to the post of Chairperson - Governing Body.
30. The Applicant in essence argued that because the Second Respondent Jeffries, was part of both the School Management Team (SMT) as well as School Governing Body (SGB), it inextricably linked her to the appointment which in turn gave rise to the alleged apprehension of bias. The fact that she belonged to both bodies was not put in dispute and is indeed very much the case. The question which needs to be answered is whether this apprehension of alleged bias could be justified in these circumstances. To answer this question, it needs to be proven that the issue of the connection or association to these bodies inter alia, rendered the appointment unfair. The point of departure would therefore be to look at the appointment of Mrs Staci Strydom (Strydom) as Governing Body Chairperson. Miss Sontsonga for the Applicant relented that Jeffries’ association and presence at the selection of Strydom’s appointment made her (Jeffries) resultant appointment, a fait accompli.

31. What the Applicant did not fully appreciate was the following: The appointment by Strydom was solely and independently managed by Dr Sharon Townsend (Townsend) herself. Townsend as a witness made a very overall good impression on me. Her testimony was characterized by concise and steadfast responses. Townsend’s evidence was further assisted by the fact that she brought a wealth of experience, most notably 40 years. Townsend testified (confirmed by other witnesses) that there were only two parents which arrived at the first meeting which did not carry the required 50% threshold. Another meeting was arranged for 04 October 2022 which saw 5 parents and 4 candidates present.

32. It should be noted that at the second meeting these individuals arrived on own volition without anyone forcefully having secured their attendance. Four people were nominated and only two were required. Jeffries introduced Townsend at this meeting but immediately left. A version which remained uncontested and one which I accept. I get the impression that Jeffries was hovering somewhere in the background. Be that as it may, this could hardly be said to have had her influence the appointment of Strydom. In the words of Townsend, “I was in charge” and I believe that she was. Townsend struck me as an individual professionally or otherwise that would take exclusive dominion over what was entrusted to her. Townsend very eloquently explained the process and the rationale behind what was done, why it was done and how. I therefore accept that the integrity of the process was not compromised but in fact executed with the necessary efficiency with which Townsend described it.

33. Moreover, even if the process could be described as having been rigged, it does not explain that independent individuals nominated and seconded Strydom autonomously without any duress. If so, it would have required Jeffries to have influenced not only the process but also the minds of those individuals which participated and nominated the candidates. In fact, even Sufeyan testified that Strydom approached her on own accord to enquire on how to become part of the SGB. This in fact supports the contention that there could never have been any connection between Strydom and Jeffries. Jeffries also testified that the appointment of Strydom happened weeks before the post went out. It would have required meticulous planning on the part of Jeffries to ensure the appointment of the new Chairperson to the SGB along with the interviews planned, conducted and coordinated. That with surgical precision. This with respect, is highly improbable if not impossible. The allegations are far removed from the actual events.

The Interview processes.

34. This process was characterized by a sequence of events which can readily be described as follows: The panel decided to shortlist the remaining six after several applicants for the post were eliminated due to non-compliance with the advertisement. Nothing turns on this and I could not comprehend the futile debate between counsel on either side to this point. Ms Jeffries and Stallenberg were part of shortlisted Applicants. Strydom opened the meeting and introduced everyone at which point they all signed confidentiality forms. They then went through interview questions to be prepared for the job applicants so that they were all given the same questions. Strydom further testified that union representatives were present at all material times. This submission holds considerable force. Their role was to also ensure that the process run was free and fair much the same way that Townsend did in her capacity as electoral officer. Two witnesses confirmed that the union’s OK’d the process.

35. Strydom had two questions while the rest of the panel each had one. This I believe was fair considering that she was colloquially speaking, the leader of the pack. Strydom further testified that she could not fathom how Jeffries or anyone on the SMT could have possibly received the questions as they discussed the questions right before the job applicants commenced their respective interviews. There was simply no evidence to suggest otherwise. Stallenberg unfortunately ventured into the impermissible domain of conjecture. She speculated. In her words: “The questions could have been shared with Mrs Jeffries or anyone on the SMT, I don’t know.” (shrugging her shoulders). The issue of an error on Jeffries’ application where it recorded her service on the SGB which was out with one year is of no moment. The same can be said of Laaiqah Moodaley who was disqualified in relation to this error. This had nothing to do with the interview panel. It was supposed to be addresses by Nogaga’s staff.

Jeffries vs Stallenberg

36. The rationale behind having preferred Jeffries to Stallenberg as was testified by witnesses could be summed up as follow. Mrs Stallenberg lacked confidence and did not give clear direct answers to the questions. The answer would not be on the same path of the question. She would divert and tell a story. If we spoke about discipline she then spoke of values, religion and where she started. It was testified that the reason why Jeffries’ scoring was higher was that she came in confident, answered each question with forethought, researched and met the panel’s requirements. This I can confirm. Jeffries’ testimony during the arbitration hearing was objective and spoke to the issues at hand. Stallenberg on the other hand many times contorted answers relative to the questions posed. Also, I believe that the allegations made were baseless and mostly founded on subjective perception. A point I will return to later.

37. Stallenberg holds a Diploma in Education from Dower College and a Further Diploma in Education from the then University of Port Elizabeth. It deserves mentioning that contrary to Jeffries she boasts an impressive extra mural resume in Sports and educational achievements mostly to do with socio economic initiatives. She is no doubt a person of the people. That much is true. Ranging from international travels in coaching sports, tennis table tennis, assisting football clubs, soup kitchens and the likes. This is no doubt impressive. Back to the situation at hand. Jeffries on the other hand holds a Teacher’s Diploma from Dower College along with a bachelor’s degree in education from Nelson Mandela Metropolitan University. Furthermore, she completed at least 10 short courses in the specific field of study. She also held the posts of moderator, senior marker and taught Mathematics.

38. She was also acting in the post at the time. Another point not argued which I believe should have been accentuated by the Respondent and was not: Northern Lights runs from grade R to Grade 12. Stallenberg taught intermediary (primary classes) phase. Jeffries taught senior classes. It would not make any practical sense to expect a teacher who taught intermediary classes to be in charge of children’s curricular and operational issues at senior. Someone teaching senior level would have a better grasp of the dynamics of the school from an all-encompassing vantage point. I do not mean to suggest that this should never be the case but cumulatively speaking, this makes more sense. Then there was the ratification process. The trade unions, Nogaga and the panel who had it concurred to appoint Jeffries in my view, tacitly endorsed the process followed leaving it untainted.

Bias or favouritism?
39. For what it’s worth the following passage is remarked in passing. The thrust of the Applicant’s case is singularly hinged on bias. I do not believe that this from a legal basis would be the correct terminology to use. Bias in the context of employment law refers to tending to choose one side or opinion over another without considering all the facts. This is normally found in matters where there is a presiding officer or decision maker such as an Arbitrator, Judge, Panelist or even Chairperson of a disciplinary hearing. There are many authorities or leading precedents set in the Courts on this issue. See Karan Beef (Pty) Ltd v Mbovane NO & others (2008) 29 ILJ 2959 (LC) also see Bernert v Absa Bank Ltd (CCT 37/10) [2010] ZACC 28 where the issue of bias is unpacked in detail in the correct context.

40. Favourtism, however, could be described as the act of giving preference or displaying special treatment towards someone over others. Be that as it may I deemed it necessary to clarify as it would not be lending the correct legal assertion to the argument advanced. The Applicant’s case was cemented on what I believe may have been a misdirected attempt at showing that Jeffries’ appointment was caused through what it believed was bias. Bias or favouritism by any other name, this attack is simply without basis in fact and law. It is not supported by any evidence and is at best conjecture.

41. Much the same way about the allegations regarding irregular appointments by walk ins. Jeffries’ niece which was appointed and the dysfunctional relationship at school. The same can be said about the alleged irregular appointments which happened under the watch of Roman. Even if that was proven by the Applicant which it was not, was Jeffries simply not a role player. All these averments were nothing more than allegations having remained unsubstantiated. This forms part of the onus which in this case rested with the Applicant party. The inner workings of the SMT and SGB along with what was described as the history of the school, along with the unexplained reason why Jeffries called Sufeyan regarding Strydom and her subsequent presence at the election, can in my considered view, not be viewed as having a nexus to the claim that the Respondent committed an act of unfair labour practice. It is on this basis that the complaint has no merit and falls to be rejected.

All other things considered.
42. Miss Sontsonga in her heads of argument raised the issue of Advocate Saayman having appeared for the 2ND Respondent and that he should have been instructed by an attorney. While this is in essence correct with the authority she advanced should the following be considered. In terms of Rule 17.4.1 an employee party may appear in the arbitration proceedings in person and/or be represented by a legal practitioner (including candidate attorneys) or by a member of office bearer of official of that party’s trade union. In the case of the employer, the employer may be represented by delegated employee of the employer and/or legal practitioner.

43. As much as Jeffries has been cited as the Second Respondent should it be noted that for all intents and purposes, that she very much remains an employee. It is on this basis that she qualifies to be represented by a trade union of which she is a member in good standing. It therefore follows that NAPTOSA may represent her. Turning to the issue at hand. Advocate Saayman is a legal practitioner employed by a trade union. At no point did he act in his capacity through his legal practice (assuming he has one) as an attorney on record for Jeffries. In fact, the attendance register clearly indicates that he is a NAPTOSA representative. His official capacity is therefore as a trade union representative of which Jeffries is a member in good standing lending locus standi in terms of the Council rules in casu.

Award
44. The applicant, Eugene Stalleberg, was not subjected to an unfair labour practice related to promotion in terms section 186 (2) (a) of the LRA, by the respondent, the Department of Education, Eastern Cape.
45. The application is dismissed.
46. Counsel for the 2nd Respondent argued that costs should follow the order. I disagree since there is still a continued relationship between the parties and the fact that I do not believe that the referral was done vexatiously. There is no order as to costs.

Firgil Philips
PHSDBC Panellist