ELRC437-23/24FS

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALY OVER ZOOM


Case No. ELRC 437-23/24FS


In the matter between

SADTU obo ISABELL BEUKES Applicant

and

EDUCATION DEPARTMENT OF FREE STATE First Respondent

R FERRIS Second Respondent

PANELIST: YOLISA NDZUTA

LAST HEARD: 30 NOVEMBER 2023

DATE OF AWARD: 17 January 2024


SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(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.

SUMMARY: Whether the Employer committed an act of unfair labour practice relating to promotion when the employee was not shortlisted and appointed into a vacancy she had acting in.


ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me initially on the 1st of December 2023. During the proceedings, the Applicant, Ms. Isabelle Beukes was represented by Mr. Desmond Serape of SADTU while the Respondent, Education Department of Free State was represented by Mr. Thulo Tsunke.

2. The parties confirmed receipt of the notice of set down and there were no pre-liminary issues raised.


THE ISSUE IN DISPUTE

3. I am required to determine whether an unfair labour practice was committed against the Applicant by the First Respondent relating to the appointment of the Second Respondent. The Applicant claims that the recruitment process undertaken by the First Respondent was unfair in that it resulted in her exclusion from the shortlisting.

THE BACKGROUND TO THE DISPUTE

4. In these proceedings the Applicant referred an unfair labour practice relating to promotion relating to the appointment process undertaken during the filling of a vacancy at Heidi Primary School.

5. The Applicant claimed that she was employed as an educator and served as the deputy principal of Heidi Primary School on a periodic basis during the academic years of 2022 and 2022.

6. The Applicant further claimed that during the academic year of 2023, a vacancy for the deputy principal was advertised and although she had acted in the vacancy she was not shortlisted.

7. The Applicant also claimed that the recruitment process of the Respondent was skewed (tainted) in that she was overlooked although she met the requirements of the bulletin.

8. The Respondent opposed the above and argued that the Applicant did not meet the requirements of the bulletin and based on the recommendation from the interview committee the Second Respondent was the best suitable candidate.

SURVEY OF EVIDENCE AND ARGUMENT

9. I shall hereinunder summarise the testimony (viva voce evidence) that was presented during the arbitration proceedings.

10. The applicant (Ms Isabelle Beukes) called two witnesses to testify under oath, that being himself together with Mrs Sharon McKenzie while the respondent called Mr John Page as its witness.

11. Ms. Beukes testified as follows:


11.1 She had been worked at Heidi Primary School since ….

11.2 She started acting (unofficially) as the deputy principal from August 2021 until December 2021.

11.3 She acted again as the deputy principal during the academic year of 2022 and 2023 when there was a rotational acting implemented at the school.

11.4 During the academic year of 2023, the vacancy of deputy principal was advertised under bulletin 840110/303 to which she expressed her interest in the vacancy by applying.

11.5 She believed that she met the requirements as advertised.

11.6 When she was not shortlisted, this was challenged and a dispute was lodged at the employer, who had acknowledged her dispute and initially responded advising that her period of acting was insufficient.

11.7 Dissatisfied with the response, she persisted with the dispute to which same was referred to the Dispute Prevention Committee, however she was then advised that upon further analysis of her application and perusal of her curriculum vitae, she did not satisfy the panel criteria.

11.8 To her understanding and upon consideration of the organogram, the criteria imposed by the panel was unfair, exclusionary and unjustified.

11.9 To her understanding, the panel criteria did not satisfy the needs of the school given that there was already a deputy principal for the Intermediate Phase and the vacant position was for a deputy principal for the foundation phase.

11.10 The exclusionary practice was a transgression of the selection criteria in terms of the ELRC: Free State Chamber Guidelines for Advertising and Filling of Educator Posts at Institutions Collective Agreement 1 of 2019.

11.11 The school was duty bound to prioritise compliance with the employment equity plan instead the successful candidate was another male teacher.


12. Ms. Beukes was subject to cross-examination and the following was discovered therefrom:

12.1 Ms Beukes’s curriculum vitae was not clear nor did same meet the minimum requirements as per the advert. Although the applicant disputed her curriculum vitae that she filed as part of the employer’s bundle, she could not provide a copy of same to sustain her challenge to the first respondent’s bundle.

12.2 The successful candidate was recommended by the interview panel which was constituted by the school’s SGB in compliance with the applicable collective agreement.

12.3 She (Ms Beukes) had not acted for a period of twelve months therefore did not meet that criterion of the collective agreement too.

12.4 Ms Beukes obtained her matric certificate (REQV 14) after she had obtained her National Diploma in Education from a Tvet College for reasons that she could explain however this explanation was not before the recruitment panel that considered her curriculum vitae.


13. The Applicant’s second witness was Mrs Sharon McKenzie who testified that:

13.1 She was a deputy principal at Heidi Primary School.

13.2 She formed part of the interview panel.

13.3 She was of the view that the applicant met the requirements of the bulletin as advertised and having perused the applicant’s curriculum vitae she is of the view that the applicant met the criteria as advertised in the bulletin.

14. The above witness’s testimony was subjected to cross-examination and the following was learned therefrom:

14.1 The applicant was not the best and most suitable candidate in the group of applicants who expressed their interest in the vacancy.

14.2 She (Mrs McKenzie) was of the view that any shortcoming in the curriculum vitae was addressed in the accompanying cover letter.

14.3 The SGB recommended the successful candidate after the interviews.

14.4 When it was put to her whether the additional criteria (for determining interviewees) was fair, she evaded the question but accepted that the SGB would get involved in the shortlisting and interviewing.


15. The respondent’s called on witness being Mr John Page whose testimony can be summarized as follows:

15.1 He was the principal of Heidi Primary school since 2017.

15.2 He testified that he was the resource person during the recruitment of the vacancy in question.

15.3 The school had received no less than twenty-six (26) of which five (5) were selected and later three (3) shortlisted for the interview.

15.4 All the applicants were subjected to the same criteria therefore there wasn’t any exclusionary practice.

15.5 To the best of his knowledge upon assessment of the applicant’s curriculum vitae established that she did not meet the minimum requirements of the bulletin furthermore she did not meet shortlisting criteria.

15.6 The decision to include additional criteria was made by the SGB.

16. The above witness was subjected to cross-examination and the following was discovered therefrom:

16.1 The applicant’s first period of acting was not recognised by the employer, only the subsequent acting periods of 1 April 2022 to 30 June 2022 and 1 April 2023 to 30 June 2023 were recognised given same were subject to the directive of the employer (Respondent).

16.2 He (Mr Page) couldn’t confirm or deny the applicant’s dispute having been referred to and concluded at the Dispute Prevention Committee.

16.3 To the best of his knowledge the criteria used by the SGB to determine the shortlisted interviewees was fair and the appointed party (the Second Respondent) satisfied the needs of the school which was important in the recruitment process.

16.4 Although the SMT (school management team) was available to assist and direct the SGB in relation to the curriculum, it (the SMT) could not impose on who must be appointed. Also the Applicant was not the best candidate of the job applicants who showed interest in the vacancy.

16.5 It was disputed that the deputy principal vacancy advertised was exclusively for foundation phase educators regardless of the incumbent who had exited from the vacancy.


17. Further to the above, the parties made written submissions which same were considered in the conclusion of these proceedings.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. As stated above, the parties agreed to file written submissions which same enclosed arguments as stated above. I shall hereinunder study the testimony and the arguments (per the written submissions).

19. We will first address the issue of the disputed bundle. The applicant had argued that the first respondent’s bundle was incomplete relating to her curriculum yet failed to provide a copy of the contested document. The latter leads us to consider the dispute in terms of the rules of evidence. Given the latter challenge, the admissibility of same had to be determined and in applying section 3(4) of the Law of Evidence Amendment Act 45 of 1988, we considered the probative value of the evidence in question.

20. The probative value was determined after parties testified as to the evidence in question and it was determined (and ruled) that same evidence is admissible due to the fact that although the applicant challenged the completeness of the curriculum vitae, she testified adequately as to its authenticity.

21. The applicant has referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:

“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;

22. The objective of the above reference is to advise that the applicant’s case shall be considered from the latter perspective to determine whether her case has met the statutory requirements. Similarly the respondent’s conduct and case shall be considered from the same perspective to determine whether an act of unfair labour practice was committed or not.

23. At the epicentre of this application lies a dispute of the requirements and criterion used to determine the interviewees. It goes without saying that the Applicant is aggrieved by her exclusion from the shortlisting and interviewees.

24. The applicant tried to argue that the SGB imposing its own criterion for shortlisting was non-compliance by the respondent with Collective Agreement however fails to explain how or whether same non-compliance was a direct and deliberate transgression. It is ascertainable (from the argument and evidence) that the applicant is more concerned with procedural fairness.

25. Given that the applicant has referred an unfair labour practice, it is thus necessary to scrutinize whether the procedural unfairness claimed by the applicant satisfies the legal definition. In Provincial Administration Western Cape )Department of Health & Social Services) v Bikwani & othes (2002) 23 ILJ 761 (LC) the court directed that when referring an unfair labour practice dispute an applicant must also demonstrate how the conduct is unfair.

26. The applicant’s arguments pertaining to shortlisting criterion adopted by the SGB fails given that the interview committee (which includes members of the SGB) is permitted to determine its own process subject to the principles of democratic values and principles.

27. A further analysis of evidence and argument presented a conundrum in that the applicant did not in evidence or argument maintain the how the procedural unfairness as argued affects the public interest. In Woolworths (Pty) v Whitehead (2000) 21 ILJ 571 (LAC) par 127 the court directed that in the evaluation of fairness, one must also consider the interest of society as a whole. It is therefore in the premise of the latter that we also consider whether the procedural unfairness argued by the Applicant is a transgression of the ‘best interest of the school’.

28. The applicant argued that the decision of the first respondent during the recruitment process and the subsequent appointment of the second respondent did not address the needs of the school, the latter argument was not corroborated nor was same supported by law.

29. The respondent’s submissions were that the applicant was not the best candidate from the pool of job applicants who expressed interest in the vacancy. The latter argument was not disputed.

30. The respondent also argued that the applicant did not meet the requirements of the advertisement as per the bulletin therefore the applicant was part of those who were subject to sifting. The latter was disputed.

31. I considered the submissions.

32. The applicant’s case was based on a claim of procedural unfairness which could not be established given the evidence before me and the arguments (submissions) filed to supplement same case. The applicant could not establish the nexus between the SGB shortlisting criterion and her absence as an interviewee when her job application (per her curriculum vitae) is said to have been sifted out by the department before the shortlisting was done.

33. In the premise of the above, the applicant has not established that there was procedural unfairness.

34. In the regard of the above, I make the following award.

AWARD

35. The Applicant has failed to establish that an unfair labour practice was perpetrated against her.

36. The applicant is not entitled to any relief sought.

Yolisa Ndzuta
Panelist: ELRC